Judge John J. Mulrooney on DRUG DIVERSION ADMINISTRATIVE REVOCATION

An upcoming law review article in the Marquette law journal by Judge John J. Mulrooney had the distinction of being cited by "60 Minutes" on Sunday, 15 October 2017.

Judge Mulrooney had previously published a related article titled DRUG DIVERSION ADMINISTRATIVE REVOCATION AND APPLICATION HEARINGS FOR MEDICAL AND PHARMACY PRACTITIONERS: A PRIMER FOR NAVIGATING MURKY, DRUG-INFESTED WATERS in 78 Alb. L. Rev. 327.

The conclusion of this article:


As administrative litigation regarding practitioner sanctions has become increasingly complex and nuanced, a greater degree of specialized knowledge of the practice and advance preparation are required to avoid unintended, adverse results. An unprepared or unschooled counsel can unwittingly choose a tactic or make a concession that can result in the loss of a medical or pharmaceutical practitioner's livelihood. Gone are the days when an able litigator can step in at the last minute with a plan no more complex than testing the other side's evidence and realistically anticipate a good result. The stakes are simply too high, and many of the tried and true tactical allies of the experienced trial lawyer operate in a different dimension in these proceedings. An ill-advised concession can be as disastrous as an across-the-board demurer. [*396] Representation in this forum requires a skillful trial attorney who, at a minimum, has acquired an understanding of the CSA, its attendant regulations, and the circuit and Agency precedents that serve as the navigation points through the murky, drug-infested waters of diversion litigation.



Footnote 444 discusses arbitrary and capricious:


Humphreys v. DEA, 96 F.3d 658, 660 (3d Cir. 1996) (citing 5 U.S.C. § 706(2)(A) (2012)); Trawick v. DEA, 861 F.2d 72, 77 (4th Cir. 1988); accord Craker v. DEA, 714 F.3d 17, 26 (1st Cir. 2013) ("[An agency] decision is arbitrary and capricious "if the agency has relied on factors which Congress has not intended it to consider, 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.'" (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983))); Morall, 412 F.3d at 178.



Of the article to be published in Marquette Law Review and mentioned on "60 Minutes", the Milwaukee Journal Sentinel noted:


But a soon-to-be-published article in the review has emerged as a key piece in an explosive investigative report that claims Congress helped disarm the Drug Enforcement Administration even as the country was dealing with a spiraling opioid crisis.

The article, to appear in the review's winter issue, was written by DEA Administrative Law Judge John J. Mulrooney II, and his former legal clerk, Katherine E. Legel, a recent Marquette University Law School graduate.

Mulrooney and Legel sought to detail the impact of an April 2016 law passed by Congress that critics say diminished the agency's authority over drug distributors.

"If it had been the intent of Congress to completely eliminate the DEA’s ability to ever impose an immediate suspension on distributors or manufacturers, it would be difficult to conceive of a more effective vehicle for achieving that goal," the article says, according to a draft.

In a joint investigation, the Washington Post and CBS News' "60 Minutes" found "a handful of members of Congress, allied with the nation’s major drug distributors, prevailed upon the DEA and the Justice Department to agree to a more industry-friendly law, undermining efforts to stanch the flow of pain pills."



link: http://www.jsonline.com/story/news/2017/10/16/marquette-law-review-article-buttresses-investigation-disarming-dea-ability-go-investigations-opioid/768357001/