                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                                     July 19, 2006
                         FOR THE FIFTH CIRCUIT
                                                               Charles R. Fulbruge III
                        ))))))))))))))))))))))))))                     Clerk

                              No. 05-60478

                        ))))))))))))))))))))))))))

MICHAEL E. BONDS,

                                                               Petitioner,

versus

KAREN TANDY,
ADMINISTRATOR, UNITED STATES
DRUG ENFORCEMENT ADMINISTRATION

                                                               Respondent.




                  Petition for Review from a Decision
                of the Drug Enforcement Administration



Before GARZA, PRADO, and OWEN, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

     Michael Bonds petitions for review of the Drug Enforcement

Administration’s    (“DEA”)   decision   denying     Rick   Quinn’s    waiver

application that would have allowed Medical Plaza Pharmacy (“MPP”)

to hire Bonds.       Because we hold that 21 U.S.C. § 877 limits

petitions for judicial review to those litigants with Article III

standing and who are also arguably within the zone of interests of

the Controlled Substances Act (“CSA”),1 we find that Bonds lacks


     1
         21 U.S.C. §§ 801-971.
standing to challenge the agency’s final decision.            Accordingly, we

dismiss the petition for lack of jurisdiction.

I.    BACKGROUND

      Bonds,    currently   a   licensed   pharmacist    in    the   State of

Mississippi, applied for employment as a pharmacist at MPP. Because

Bonds had a prior felony conviction for the illegal distribution of

a controlled substance, and because he once owned a pharmacy that

had its DEA registration revoked, 21 C.F.R. § 1301.76 prevented MPP

from hiring Bonds unless the DEA waives the restriction.2            On August

23, 2004, Quinn, on behalf of MPP, applied for a waiver, but the DEA

denied the application based on Bonds’s criminal history and the

criminal histories of MPP’s owner and two of its former employees.

II.   DISCUSSION

      A.     Standard of Review

      Bonds petitions this Court for review, claiming that the DEA’s

decision was arbitrary and not supported by substantial evidence.

The Government counters that Bonds lacks standing to appeal the

DEA’s      decision.   We   review   questions   of     jurisdiction,     and

specifically standing, de novo.        See, e.g., Pederson v. La. State


      2
      See 21 C.F.R. § 1301.76(a) (“The registrant shall not
employ, as an agent or employee who has access to controlled
substances, any person who has been convicted of a felony offense
relating to controlled substances or who, at any time, had an
application for registration with the DEA denied, had a DEA
registration revoked or has surrendered a DEA registration for
cause.”); 21 C.F.R. § 1307.03 (allowing for waiver of regulations
in the Administrator’s discretion). 21 C.F.R. § 1301.76(a) was
promulgated under the CSA.

                                     -2-
Univ., 213 F.3d 858, 869 (5th Cir. 2000).             Although the DEA raises

standing, Bonds bears the burden of persuasion.               BCCA Appeal Group

v. U.S. Envtl. Prot. Agency, 355 F.3d 817, 825 (5th Cir. 2003).

     B.      Scope of Judicial Review Under the Controlled Substances
             Act

     The CSA’s judicial review provision provides that “any person

aggrieved by a final decision of the Attorney General” may obtain

review of “[a]ll final determinations, findings, and conclusions of

the Attorney General under this subchapter.”               21 U.S.C. § 877.   The

Government     contends   that   the    CSA’s    judicial     review    provision

requires, at a minimum, two standing components, one constitutional,

which is based on Article III’s provision for judicial review of a

case or controversy,3 and the other prudential.4              Specifically, the

Government argues that Bonds lacks standing because he fails to meet

the prudential standing requirements. It contends that Bonds is not

a “person aggrieved” under the CSA because: (1) the alleged injury

does not fall within the zone of interests protected or regulated

by the CSA; (2) Bonds is not an employer-registrant or waiver

applicant; and (3) Bonds cannot raise the legal rights of a third

party.      Bonds   asserts   that     he    meets   the   prudential   standing



     3
         U.S. CONST. art. III, § 2, cl.1.
     4
      The prudential requirements consist of “judicially self-
imposed limits on the exercise of federal jurisdiction,” Allen
v. Wright, 468 U.S. 737, 750–51 (1984), that can be modified or
abrogated by Congress, Bennett v. Spear, 520 U.S. 154, 162
(1997).

                                       -3-
requirements because he is a “person aggrieved” under the CSA’s

judicial review provision, 21 U.S.C. § 877.

     “The phrase ‘person adversely affected or aggrieved’ is a term

of art used in many statutes to designate those who have standing

to challenge or appeal an agency decision, within the agency or

before the courts.”   Dir., Office of Workers’ Comp. Programs v.

Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 126 (1995).

We have not yet addressed the scope of the term “person aggrieved”

under 21 U.S.C. § 877.    Because Congress could have, through 21

U.S.C. § 877, expanded judicial reviewability to litigants who do

not meet the prudential standing requirements, we look to the Act

to determine whether Congress intended the prudential standing

doctrine to apply to suits brought under the CSA.        See Assoc. of

Cmty. Orgs. for Reform Now v. Fowler, 178 F.3d 350, 356, 363 (5th

Cir. 1999). However, we recognize that “Congress legislates against

the background of [the] prudential standing doctrine, which applies

unless it is expressly negated.”       Bennett v. Spear, 520 U.S. 154,

163 (1997).

     In drafting the CSA, Congress did not expressly expand judicial

review   to   litigants   not   meeting     the   prudential   standing

requirements.5   Moreover, in the context of the similarly-worded


     5
       In Association of Community Organizations for Reform Now
v. Fowler, we held that Congress intended to extend standing
under the National Voter Registration Act (“NVRA”) to the maximum
allowable under the Constitution. 178 F.3d at 363 (5th Cir.
1999). There, we relied on Federal Election Commission v. Akins,

                                 -4-
judicial review provision in the Administrative Procedure Act

(“APA”), the Supreme Court, in Newport News, suggested that to be

a person aggrieved, the litigant must “show at the outset of the

case, that he is injured in fact by agency action and that the

interest he seeks to vindicate is arguably within the ‘zone of

interests   to   be   protected   or   regulated   by   the   statute’   in

question.”6 Id. at 126-27 (citation omitted).


524 U.S. 11 (1998), which acknowledged that the history of the
term “aggrieved” indicates Congress’s intent to cast the standing
net broadly. However, Fowler is distinguishable. The NVRA’s
judicial review provisions provide that a “person who is
aggrieved by a violation of th[e] Act may provide written notice
of the violation to the chief election official of the State
involved” and that, if not corrected within a given time, the
“aggrieved person may bring a civil action in an appropriate
district court for declaratory or injunctive relief with respect
to the violation.” 42 U.S.C. §§ 1973gg-9(b)(1) & (2). The CSA’s
wording is closer to the Administrative Procedure Act’s (“APA”)
wording, and the prudential requirements always apply to the APA.
Moreover, the NVRA’s legislative history, judicial
interpretations of the specific language Congress used in the
NVRA’s private right of action, and the inclusion of a provision
for attorneys’ fees, all supported the conclusion that Congress
intended the NVRA’s private-right-of-action provision to
eliminate prudential limitations on standing.
     6
      Section 702 of the APA, the provision that the Court
interpreted in Newport News, gives certain persons the right to
obtain judicial review of particular agency actions. It
provides, in pertinent part, that “[a] person suffering legal
wrong because of agency action, or adversely affected or
aggrieved by agency action within the meaning of a relevant
statute, is entitled to judicial review thereof.” 5 U.S.C. §
702; see also, Dir., Office of Workers’ Comp. Programs v. Newport
News Shipbuilding & Dry Dock Co., 514 U.S. 122, 126 (1995). The
Court acknowledged that “[a]s the United States Department of
Justice, Attorney General’s Manual on the Administrative
Procedure Act (1947) put it, ‘The determination of who is
‘adversely affected or aggrieved ... within the meaning of any
relevant statute’ has ‘been marked out largely by the gradual

                                   -5-
         The D.C. Circuit applied Newport News, and also reached our

conclusion regarding the standing requirements under 21 U.S.C.

§ 877.    In PDK Laboratories Inc. v. United States Drug Enforcement

Administration, the court stated:

                 In view of the interpretation of statutes
                 applicable to other agencies containing
                 language identical to § 877, we hold that
                 if PDK has Article III standing, which no
                 one doubts, and if its interests are
                 “arguably within the zone of interests” §
                 971(c)(1) regulates, which we believe they
                 are, PDK is a “person aggrieved” within §
                 877’s meaning and is entitled to prosecute
                 its case in court.

362 F.3d 786, 793 (D.C. Cir. 2004)(citing Newport News, 514 U.S.

126-27). Therefore, according to PDK Laboratories, the term “person

aggrieved” merely requires that the litigant have Article III

standing and prudential standing—i.e., arguably be within the “zone

of interests.”     We agree with the D.C. Circuit’s application of

Newport News to 21 U.S.C. § 877.    Accordingly, because we find that

the background understanding of “person aggrieved” includes both the

constitutional and prudential limits on standing, we hold that 21

U.S.C. § 877 limits petitions for judicial review to those litigants

with Article III standing and who are also arguably within the zone




judicial process of inclusion and exclusion, aided at times by
the courts’ judgment as to the probable legislative intent
derived from the spirit of the statutory scheme.’” Id. at 127-27
(citation omitted).

                                   -6-
of interests7 protected by the CSA.

     C.   Whether Bonds Is A “Person Aggrieved” Under 21 U.S.C.
          § 877.

     Because we conclude that Bonds meets the Article III standing

requirements,8 our inquiry is whether Bonds has prudential standing.


     7
       The zone of interest test “is not a test of universal
application[,]” Clarke v. Sec. Indus. Assoc., 479 U.S. 388, 399
n.16 (1987), but “because it is the most useful factor in
considering Congressional intent on the question of standing, we
invoke it as an aid to our decisionmaking today, as we sometimes
have in the past.” Corrosion Proof Fittings v. Envtl. Prot.
Agency, 947 F.2d 1201, 1209 n.5 (5th Cir. 1991) (citation
omitted).
     8
       To meet the constitutionally-compelled injury-in-fact
element, Bonds must show (1) he suffered an injury-in-fact,
meaning “an invasion of a judicially cognizable interest which is
(a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical”; (2) the injury is fairly traceable
to the challenged action of the DEA; and (3) the injury is likely
to be redressed by a favorable decision. Bennett, 520 U.S. at
167. The DEA’s denial of MPP’s application for a waiver of the
restrictions against hiring Bonds has caused Bonds actual,
concrete, and particularized injury by prohibiting him from
pursuing his chosen profession as a pharmacist at MPP. The
injury also constitutes an invasion of a judicially cognizable
interest because we have previously recognized a liberty interest
in pursuing a chosen profession. See Stidham v. Tex. Comm’n on
Private Sec., 418 F.3d 486, 491 (5th Cir. 2005) (“The Supreme
Court has said that ‘the right to work for a living in the common
occupations of the community is of the very essence of the
personal freedom and opportunity that it was the purpose of the
[Fourteenth] Amendment to secure[,]’” and this court has
“confirmed the principle that one has a constitutionally
protected liberty interest in pursuing a chosen
occupation.)(quoting Truax v. Raich, 239 U.S. 33, 41 (1915)).
The injury is fairly traceable to the challenged action of the
DEA and is likely to be redressed by a favorable decision of this
court because MPP’s affidavit affirms that MPP offered Bonds
employment, and the offer is still open, contingent on the DEA
waiving the legal impediment to MPP’s hiring Bonds. The
pertinent inquiry is, therefore, not whether Bonds incurred an
injury in fact, but whether he satisfies prudential

                                -7-
In deciding whether a litigant has prudential standing, we must

identify what interest the litigant seeks to assert and then decide

if that interest is arguably within the zone of interests to be

protected or regulated by the statute.        “Under the ‘zone of

interests’ test, we liberally construe Congressional acts to favor

a plaintiff’s standing to challenge administrative actions.    This

is not to say, however, that all plaintiffs affected by a regulation

or order have standing to sue . . . .”   Corrosion Proof Fittings v.

Envtl. Prot. Agency, 947 F.2d 1201, 1209 (5th Cir. 1991) (citation

omitted).9   “In cases where the plaintiff is not . . . the subject

of the contested regulatory action, the test denies a right of

review if the plaintiff’s interests are so marginally related to or

inconsistent with the purposes implicit in the statute that it

cannot reasonably be assumed that Congress intended to permit suit.”

Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987).



considerations. Ass’n of Data Processing Serv. Orgs., Inc. v.
Camp, 397 U.S. 150, 153 (1970).
     9
      “As a general rule, a person who suffers a legal wrong
because of an agency action or who is adversely affected or
aggrieved by an agency action within the meaning of a relevant
statute is entitled to judicial review of the agency action.”
Bullard v. Webster, 623 F.2d 1042, 1045 (5th Cir. 1980).
Accordingly, “judicial review of a final agency action by an
aggrieved person will not be cut off unless there is persuasive
reason to believe that such was the purpose of Congress.” Morris
v. Gressette, 432 U.S. 491, 501 (1977) (quoting Abbott Labs. v.
Gardner, 387 U.S. 136, 140 (1967)). That said, “[t]he
presumption favoring judicial review of administrative action is
just that—a presumption.” Block v. Cmty. Nutrition Inst., 467
U.S. 340, 349 (1984).

                                -8-
     Section 823(b) of the CSA expressly indicates that the interest

protected by the regulation’s registration requirement is the

public’s interest in the legitimate use of controlled substances and

to inhibit the pernicious consequences to the public’s health and

safety of illegitimate use.       21 U.S.C. § 823(b) provides:

                 (b) The Attorney General shall register
                 an applicant to distribute a controlled
                 substance in schedule I or II unless he
                 determines that the issuance of such
                 registration is inconsistent with the
                 public interest.       In determining the
                 public interest, the following factors
                 shall be considered:
                 (1) maintenance of effective control
                 against     diversion     of    particular
                 controlled substances into other than
                 legitimate    medical,   scientific,   and
                 industrial channels;
                 (2) compliance with particular State and
                 local law;
                 (3) prior conviction record of applicant
                 under Federal or State laws relating the
                 manufacture, distribution, or dispensing
                 of such substances;
                 (4) past experience in the distribution
                 of controlled substances; and
                 (5) such other factors as may be relevant
                 to and consistent with the public health
                 and safety.

Because the language of the CSA specifically states that the Act is

meant to protect the public from the deleterious effects of the

illegitimate use and distribution of controlled substances, and does

not mention the employment rights of pharmacists, Bonds’ desire to

be employed by MPP is not arguably within the zone of interests

protected by the CSA.

     Moreover,    the   Supreme   Court,   on   several   occasions,   has


                                    -9-
acknowledged that, in drafting the CSA, Congress intended to protect

the public from the deleterious effects of the illegitimate use and

distribution of controlled substances.           For example, in Gonzales v.

Oregon the Court recognized that Congress drafted the CSA to

“combat[] drug abuse and control[] legitimate and illegitimate

traffic in controlled substances.”          126 S. Ct. 904, 911 (2006).

Additionally, in Gonzales v. Raich, the Court noted that Congress

found that “[t]he illegal importation, manufacture, distribution,

and possession and improper use of controlled substances have a

substantial and detrimental effect on the health and general welfare

of the American people.”         125 S. Ct. 2195, 2203 n.20 (2005).

Finally, considering the CSA, the Court once wrote that “Congress

was   particularly   concerned     with    the   diversion    of   drugs   from

legitimate channels to illegitimate channels.               It was aware that

registrants, who have the greatest access to controlled substances

and   therefore   the   greatest    opportunity       for    diversion,    were

responsible for a large part of the illegal drug traffic.”                United

States v. Moore, 423 U.S. 122, 135 (1975) (citations omitted).

Hence, Bonds’s interest conflicts with the CSA’s zone of interests.

      Bonds provides no citations to the text or legislative history

of the CSA that would support a finding that it was designed, in

whole or in part, to protect the interests of a pharmacist in

employment.   Indeed, the only case on point, Bzdzuich v. United

States Drug Enforcement Administration, 76 F.3d 738 (6th Cir. 1996),


                                    -10-
concludes otherwise.        In Bzdzuich, a prospective employee and a DEA

registered pharmacist petitioned for review of a DEA decision

denying the registrant’s application for a waiver of 21 C.F.R.

§ 1301.76(a).      Id. at 740-41.      The Sixth Circuit found that “21

U.S.C. § 823(b), the statute under which 21 C.F.R. § 1301.76(a) was

promulgated, was not enacted to protect the employment rights of

pharmacists with or without felony drug convictions.”               Id. at 742.

Rather, “the interest protected in 21 U.S.C. § 823(b) is the

interest   of    the   public   in   the    legitimate   use   of    controlled

substances      and,   by   implication,     to   contain   the     deleterious

consequences to the public’s health and safety of illegitimate use.”

Id.    Accordingly, the Sixth Circuit stated that the employee’s

injury was not “within the ‘zone of interests’ of the statutory

provision which form[ed] the basis of his complaint” and he lacked

standing to pursue judicial review.10         We agree that a pharmacist’s


      10
       Bzdzuich seemed to contain the alternative holding that,
because only an employer-registrant could and did “file[] an
application for waiver,” the prospective employee could not be a
“person aggrieved” under the judicial review provision, 21 U.S.C.
§ 877. Bzdzuich v. United States Drug Enforcement Admin., 76
F.3d 738, 742 (6th Cir. 1996). Interpreting “person aggrieved”
to apply only to applicants for a waiver is inconsistent with the
Supreme Court’s more expansive interpretation of similar
language. See Akins, 524 U.S. 11, 19 (1998)(“History associates
the word ‘aggrieved’ with a congressional intent to cast the
standing net broadly-beyond the common-law interests and
substantive statutory rights upon which ‘prudential’ standing
traditionally rested.”); Newport News, 514 U.S. at 126.
Bzdzuich’s alternative holding is more consistent with the
interpretation given to the term “party aggrieved” in various
judicial review provisions. Courts have construed this term as
limiting statutory standing to “one who participated in the

                                     -11-
interest   in   employment   is   not   arguably   within   the   “zone   of

interests” protected by the statute.        Accordingly, Bonds is not a

“person aggrieved” under 21 U.S.C. § 877.            See Block v. Cmty.

Nutrition Inst., 467 U.S. 340, 349 (1984)(rejecting standing for a

consumer under the Agricultural Marketing Agreement Act of 1937).

We DISMISS the petition for lack of jurisdiction.11



agency proceeding.” Ala. Power Co. v. Fed. Commc’n Comm’n, 311
F.3d 1357, 1366 (11th Cir. 2002); see Erie-Niagara Rail Steering
Comm. v. Surface Trans. Bd., 167 F.3d 111, 111-12 (2d Cir. 1999);
In re Chicago, Milwaukee, St. Paul & Pac. R.R. Co., 799 F.2d 317,
334 (7th Cir. 1986); Am. Trucking Assn’s, Inc. v. ICC, 673 F.2d
82, 84 (5th Cir. 1982) (noting that a right to appeal an agency
proceeding is restricted to parties). However, such an
interpretation has not been applied to the term “person
aggrieved.” Simmons v. Interstate Commerce Comm’n, 716 F.2d 40,
43 (D.C. Cir. 1983).
     11
       Bonds also asserts that he has standing because he is
asserting the rights of Quinn, a third party. Generally, a
person does not have standing to assert the interests of another,
“even when the very same allegedly illegal act . . . affects the
litigant [and] a third party.” United States Dep’t of Labor v.
Triplett, 494 U.S. 715, 720 (1990). The Supreme Court has
“recognized the right of litigants to bring actions on behalf of
third parties,” provided: (1) the litigant suffered an injury in
fact that gave him a sufficiently concrete interest in the
outcome of the issue in dispute; (2) the litigant has a close
relation to the third party; and (3) there “must exist some
hindrance to the third party’s ability to protect his or her own
interests.” Powers v. Ohio, 499 U.S. 400, 410-11 (1991).
Although Quinn asserts in an affidavit that Bonds is petitioning
on his behalf, this affidavit does not suggest that Quinn is
unable to protect his own interests. See Singleton v. Wulff, 428
U.S. 106, 116 (1976) (noting that where there is a “genuine
obstacle” to a person’s participation, “absence from court loses
its tendency to suggest that his right is not truly at
stake . . . and the party who is in court becomes by default the
right’s best available proponent.”). Accordingly, Bonds may not
obtain judicial review based upon the assertion of Quinn’s
interests.

                                   -12-
