MacKay v. Drug Enforcement Administration (2011)

MacKay v. DEA, 664 F.3d 808, 820 (10th Cir.2011).

The plaintiff still bears the burden to establish a nonconsensual sexual act, and the plaintiff may present evidence of coercion to establish lack of consent. 11 Appellate Case: 22-7054 Document: 72-1 Date Filed: 02/14/2025 Page: 12 adverse inferences); Mackay v. DEA, 664 F.3d 808, 820 (10th Cir. 2011) (quoting Baxter, 425 U.S. at 318 ) (same).

An appellate court will uphold the penalty chosen by the DAB so long as the DAB “examined the relevant data and articulated a satisfactory explanation for its decision, including a -17- No. 18-3327, Doran v. Wilkie et al. rational connection between the facts and the decision made.” Kreso v. McDonald, 631 F. App’x 519 , 523–24 (10th Cir. 2015) (citing MacKay v. DEA, 664 F.3d 808, 817 (10th Cir. 2011)).

See MacKay v. Drug Enf't Admin., 664 F.3d 808, 820 (10th Cir. 2011) (“The DEA may properly consider whether a physician admits fault in determining if the physician’s registration should be revoked.”); Hoxie v. Drug Enf't Admin., 419 F.3d 477, 483 (6th Cir. 2005) (“The DEA properly considers the candor of the physician and his forthrightness in assisting in the investigation and admitting fault important factors in determining whether the physician’s registration should be- …

This court will uphold the decision to terminate Kreso if we determine the DAB “examined the relevant data and articulated a satisfactory explana *524 tion for [its] decision, including a rational connection between the facts and the decision made.” MacKay v. DEA, 664 F.3d 808, 817 (10th Cir.2011) (quotation omitted).

Such evidence includes acceptance of responsibility and a demonstration that the applicant “will not engage in future misconduct.” Id.; see also, e.g., Hoxie v. Drug Enf’t Admin., 419 F.3d 477, 482-83 (6th Cir.2005); MacKay v. Drug Enf’t Admin., 664 F.3d 808, 820-21 (10th Cir.2011) (finding that an applicant’s self-reproach may indicate whether he will transgress again, a “consideration ... vital to whether ... registration is in the public interest”).

MacKay v. DEA, 664 F.3d 808, 820 (10th Cir. 2011) (quoting Keating v. Office of Thrift Supervision, 45 F.3d 322, 326 (9th Cir. 1995)); see also Doe v. DiStefano, 2019 WL 2372685 (D.

MacKay v. DEA, 664 F.3d 808, 820 (10th Cir. 2011) (“The Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them….”) (alterations and quotations omitted). 4 Plaintiff was not in segregation for this entire time period; he left segregation on March 31 and returned to segregation on April 14, 2018.

MacKay v. DEA, 664 F.3d 808, 820 (10th Cir. 2011) (“The Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them….”) (alterations and quotations omitted). 4 Plaintiff was not in segregation for this entire time period; he left segregation on March 31 and returned to segregation on April 14, 2018.

See Order Directing the Appointment of a Chapter 11 Trustee [ECF No. 227, Case No. 18-10509]; cf. MacKay v. Drug Enf’t Admin., 664 F.3d 808, 820 (10th Cir. 2011) (citing Baxter v. Palmigiano, 425 U.S. 308, 318 (1976) (“[T]he Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them. . . .”)).

AdHealth, Ltd. v. PorterCare Adventist Health Sys., 135 F.4th 1241 , 1244 n.1 (10th Cir. 2025); see MacKay v. Drug Enf’t Admin., 664 F.3d 808, 812 (10th Cir. 2011) (in review of agency decision revoking doctor’s registration to dispense controlled substances, granting motion to seal patient medical records and private personal information).

See MacKay v. Drug Enf’t Admin., 664 F.3d 808, 820 (10th Cir. 2011) (“[T]he Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.

Various federal courts have noted that Baxter applies “forcefully in medical discipline cases.” Arthurs v. Stern, 560 F.2d 477, 478 (1st Cir. 1977) (agreeing with Baxter in a medical disciplinary proceeding that “the trier of fact [may] treat 3 silence as evidence of guilt”); see also MacKay v. Drug Enf’t Admin., 664 F.3d 808, 820 (10th Cir. 2011) (citing Baxter and affirming the revocation of a medical doctor’s registration to dispense controlled substances).