### 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 rev iew of a Drug Enforcement Administration (“DEA”) decision to revoke his certificate of registration authorizing him to dispense controlled substances in his medical practice. W e DENY the petition.

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED September 25, 2015 Lyle W. Cayce Clerk Case: 14-60832 Document: 00513208109 Page: 1 Date Filed: 09/25/2015No. 14

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2 FACTUAL AND PROCEDURAL BACKGROUND
In November 2011, the Mississippi Stat e 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 re lated to White’s medical weight

- loss practice. Evidence fr om 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 tha t they had made efforts to lose weight without the aid of controlled substances. Several of the patients were not obes e 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 t he prescription and dispensing of the medication . It imposed a stayed six

- month suspension of White’s medical license in J anuary 2012. 1 Additionally, the Medical Board permanently barred him from practicing or prescribing controlled substances in the area of weight loss. Th e Medical Board also required White to attend continuing medical education courses. He failed to time ly complete the courses, which prompted a second hearing before the Medical Board. In March 2012, following the Medical Boar d’s decision, White voluntarily surrendered his DEA certificate of registration. Several days later, he applied for a new certific ate. The DEA Deputy Assistant Administrator issued an
order to show cause why White’s application should not be denied because registration would be in consistent 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 medi cal purpose and outside the usual course of medic al practice.” A jury acquitted him on all charges in October 2012. Case: 14-60832 Document: 00513208109 Page: 2 Date Filed: 09/25/2015No. 14

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3 §§ 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. D ocuments were i ntroduced into evidence. The administrative law judge (“ALJ”) found , among other deficiencies, that White fail e d 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 Whi te 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
i nvestigation 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 evi dence 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 discret ion. 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. ” Case: 14-60832 Document: 00513208109 Page: 3 Date Filed: 09/25/2015No. 14

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4 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

sup ported by substantial evidence , which is “more than a mere scintilla but less than a preponderance.” Id. at 476. The Controlled Substances Act cre ated a “r egulatory 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) t he 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 sub stances; (4) the applica nt’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 en trusted 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. ; s ee 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 Case: 14-60832 Document: 00513208109 Page: 4 Date Filed: 09/25/2015No. 14

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5 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, th e government has established a prima facie case. C onsistent with the purposes of the Controlled Substances Act, the DE A 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 Me dical 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

- patie nt 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” fact ors, weigh against granting a new certificate of registration. See 21 U.S.C. § 823(f). Case: 14-60832 Document: 00513208109 Page: 5 Date Filed: 09/25/2015No. 14

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6 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

m inimized 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 indi cated 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 demonstra ted acceptance of responsibility, the Deputy Administrator properly considered all of this
evidence

. There is substantial support for the determination tha t White fell short in showing that he cou ld be trusted with a new certificate . The agency’s
decision was not arbi trary

. The petition for review is DENIED. Case: 14-60832 Document: 00513208109 Page: 6 Date Filed: 09/25/2015