     Case: 14-60832      Document: 00513208109         Page: 1    Date Filed: 09/25/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-60832
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        September 25, 2015
MICHAEL A. WHITE, Medical Doctor,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Petitioner

v.

DRUG ENFORCEMENT ADMINISTRATION,

                                                 Respondent


                          On Petition for Review of an Order
                      of the Drug Enforcement Administration
                                    DEA No. 13-16




Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Dr. Michael White petitions for review of a Drug Enforcement
Administration (“DEA”) decision to revoke his certificate of registration
authorizing him to dispense controlled substances in his medical practice. We
DENY the petition.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                 FACTUAL AND PROCEDURAL BACKGROUND
       In November 2011, the Mississippi State Board of Medical Licensure (the
“Medical Board”) instituted disciplinary proceedings against petitioner Dr.
Michael White. The Medical Board acted after a DEA investigation exposed
misconduct related to White’s medical weight-loss practice. Evidence from the
investigation      revealed,      among      other     things,    that     White     prescribed
phentermine, a schedule IV controlled substance, to multiple patients without
performing a thorough physical examination, documenting properly their
medical history, and verifying that they had made efforts to lose weight
without the aid of controlled substances. Several of the patients were not obese
or overweight when White authorized use of phentermine; some gained weight
during treatment, but White never discontinued their use.
       The Medical Board decided that White failed to comply with its rules and
regulations as well as applicable state statutes governing the prescription and
dispensing of the medication. It imposed a stayed six-month suspension of
White’s medical license in January 2012. 1 Additionally, the Medical Board
permanently barred him from practicing or prescribing controlled substances
in the area of weight loss. The Medical Board also required White to attend
continuing medical education courses.                 He failed to timely complete the
courses, which prompted a second hearing before the Medical Board.
       In March 2012, following the Medical Board’s decision, White voluntarily
surrendered his DEA certificate of registration. Several days later, he applied
for a new certificate. The DEA Deputy Assistant Administrator issued an
order to show cause why White’s application should not be denied because
registration would be inconsistent with the public interest under 21 U.S.C.


       1  White also faced federal criminal charges for “knowingly and intentionally dispensing and
distributing phentermine . . . without a legitimate medical purpose and outside the usual course of
medical practice.” A jury acquitted him on all charges in October 2012.
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§§ 823(f) and 824(a)(4). White was granted a hearing. The DEA called three
witnesses including an investigator who participated in the investigation of
White’s practice, the executive director of the Medical Board, and a medical
expert in weight loss and bariatrics. White also testified. Documents were
introduced into evidence.
      The administrative law judge (“ALJ”) found, among other deficiencies,
that White failed to conduct an examination or document the medical history
of the patients to whom he prescribed phentermine. Thus, he had not
established a bona fide doctor-patient relationship with them, and had thereby
violated multiple statutes and regulations. The ALJ also said that White failed
to submit mitigating evidence showing he could be trusted with a new
certificate.   Although at the hearing White admitted he engaged in some
misconduct, the ALJ found he denied that his underlying actions were
improper, blamed subordinates, criticized applicable laws and regulations, was
angry at the Medical Board for disciplining him, and attributed the initial
investigation to being unfairly targeted by the DEA.
      In the final agency decision on White’s application, the DEA Deputy
Administrator adopted the ALJ’s findings of fact, conclusions of law, and
recommendation, explaining that there was “more than ample evidence to
support the conclusion that [White] poses a potential danger to the public.”
White petitions for review of the decision.


                                DISCUSSION
      In reviewing the denial of an application, deference is given to the
Deputy Administrator’s exercise of discretion. See Noell v. Bensinger, 586 F.2d
554, 558 (5th Cir. 1978). An agency decision will only be set aside if it is
“arbitrary, capricious, an abuse of discretion, or otherwise contrary to law.”


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See Williams v. Admin. Review Bd., 376 F.3d 471, 475 (5th Cir. 2004) (citation
and quotation marks omitted). Factual findings are sustained if they are
supported by substantial evidence, which is “more than a mere scintilla but
less than a preponderance.” Id. at 476.
      The Controlled Substances Act created a “regulatory system making it
unlawful to . . . dispense . . . any controlled substance” unless authorized by
the statute. Gonzales v. Raich, 545 U.S. 1, 13 (2005). Persons in the lawful
distribution chain must be registered with the DEA pursuant to 21 U.S.C.
§ 823. In carrying out its responsibilities related to registration, the DEA
Deputy Administrator may deny a practitioner’s application for a certificate if
issuing it would be inconsistent with the public interest. Id. § 824(a)(4). Five
factors have bearing on this determination: (1) the recommendation of a state
licensing board; (2) “[t]he applicant’s experience in dispensing, or conducting
research with respect to controlled substances”; (3) the applicant’s criminal
history related to controlled substances; (4) the applicant’s compliance with
state, federal, and local laws related to controlled substances; and (5) “other
conduct which may threaten the public health and safety.” Id. § 823(f).
      Where the government has established a prima facie case that the public
interest would be harmed in issuing a certificate, the DEA requires an
applicant to submit “mitigating evidence to assure the Administrator that [he]
can be entrusted with the responsibilit[ies]” that accompany registration. See
Med. Shoppe—Jonesborough, 73 Fed. Reg. 364, 387 (Drug Enf’t Admin. Jan. 2,
2008) (citation and quotation marks 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


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                                    No. 14-60832
indicate whether he will transgress again, a “consideration . . . vital to whether
. . . registration is in the public interest”).
      White’s only argument now is that the Deputy Administrator erred in
determining that White failed to accept responsibility for his actions. White
asserts that his decision to end his weight-loss practice prior to the Medical
Board’s ruling, voluntary surrender of his DEA certificate, admitting he made
“mistakes” in his practice, and accepting professional discipline demonstrates
he acknowledges and regrets his misconduct. White argues his failure to “give
a lachrymose true confession[] or lie prostrate” during the hearing on the show
cause order, and his displeasure about the Medical Board proceedings and at
being allegedly singled out by the DEA, does not undermine the sincerity of his
promise to avoid future missteps. We disagree.
      As an initial matter, the government has established a prima facie case.
Consistent with the purposes of the Controlled Substances Act, the DEA
requires that prescriptions be issued for “legitimate medical purpose[s] by a[]
. . . practitioner acting in the usual course of his professional practice.” 21
C.F.R. § 1306.04(a).     Here, the DEA investigation, the disciplinary action
rendered by the Medical Board, the medical expert who testified at the hearing
on the show cause order, and even some of White’s testimony at the hearing,
indicate that White repeatedly prescribed phentermine to individuals with
whom he did not have a bona fide doctor-patient relationship, who were not
obese, and who had not demonstrated an attempt to lose weight without the
aid of controlled substances. Thus, there is substantial evidence supporting
the conclusion that White’s experience in dispensing controlled substances and
his history of compliance with applicable laws, the second and fourth statutory
“public interest” factors, weigh against granting a new certificate of
registration. See 21 U.S.C. § 823(f).


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                                 No. 14-60832
      As for mitigating evidence, during the hearing on the show cause order,
White testified that he voluntarily quit his weight loss practice and now
realizes that phentermine is “dangerous[.]” Even when White was apologetic,
however, he often equivocated and deflected blame. For example, White
minimized his prescription of “diet pill[s]” as compared to other weight loss
solutions like plastic surgery, emphasized that none of his patients have
suffered injuries as a result of his actions, denied prescribing phentermine
without “medical justification,” and indicated that the nurse practitioners with
whom he worked were responsible for the subpar physical examinations and
medical history documentation.      He also testified that the DEA unfairly
targeted him even though his practice was in line with other physicians’
practices. In weighing whether White adequately demonstrated acceptance of
responsibility, the Deputy Administrator properly considered all of this
evidence. There is substantial support for the determination that White fell
short in showing that he could be trusted with a new certificate. The agency’s
decision was not arbitrary.
      The petition for review is DENIED.




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