Bonds v. Tandy

1 21 U.S.C. §§ 801-971.
United States Court of Appeals
Fifth Circuit
F I L E D
July 19, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 05-60478
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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

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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.
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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

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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).
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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

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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,
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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

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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
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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).

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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).
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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

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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
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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.

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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).
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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).

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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

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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),

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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
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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

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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.
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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

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