IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-60832

Summary Calendar

MICHAEL A. WHITE, Medical Doctor,

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.

United States Court of Appeals

Fifth Circuit

FILED

September 25, 2015

Lyle W. Cayce

Clerk

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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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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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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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