Bonds v. Tandy ( 2006 )

  •                                                              United States Court of Appeals
                                                                          Fifth Circuit
                                                                       F I L E D
                                                                         July 19, 2006
                             FOR THE FIFTH CIRCUIT
                                                                   Charles R. Fulbruge III
                            ))))))))))))))))))))))))))                     Clerk
                                  No. 05-60478
                      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
             21 U.S.C. §§ 801-971.
    standing to challenge the agency’s final decision.            Accordingly, we
    dismiss the petition for lack of jurisdiction.
          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.
          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
          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.
    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
         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
             U.S. CONST. art. III, § 2, cl.1.
          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
    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
           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,
    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.
          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
             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).
    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.
           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.
    947 F.2d 1201
    , 1209 n.5 (5th Cir. 1991) (citation
           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
    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.
    397 U.S. 150
    , 153 (1970).
          “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.
    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).
         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
    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),
    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
           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
    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).
           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.
    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