Federal Register / Vol. 79, No. 203 / Tuesday, October 21, 2014 / Notices 62957 

5Electronic Document Information System 

(EDIS): http://edis.usitc.gov. 

1All citations to the Recommended Decision are 

to the slip opinion as issued by the ALJ. 

2 I decline to publish the ALJ’s discussion of the 

substantial evidence standard. It suffices to say that 

in reviewing the factual findings of a recommended 

decision, this Agency adheres to the principles set 

forth in Universal Camera Corp. v. NLRB, 340 U.S. 

474, 496 (1951). 

3The Board also found that he had ‘‘initiated 

treatment utilizing a Schedule IV controlled 

substance without having performed a review of the 

patient’s prior medical and weight-loss program 

records to determine that the patient had made a 

substantial good-faith effort to lose weight in a 

treatment program utilizing a regimen of weight 

reduction based on caloric restriction, nutritional 

counseling, behavior modification and exercise, 

without the utilization of controlled substances, 

and that said treatment had been ineffective, all in 

violation of Miss. Code Ann. § 73–25–29(13).’’ GX 

5, at 49 (citing 25 Miss. Code R. § 501(1)). 

treatment. All such requests should be 

directed to the Secretary to the 

Commission and must include a full 

statement of the reasons why the 

Commission should grant such 

treatment. See 19 CFR 201.6. Documents 

for which confidential treatment by the 

Commission is properly sought will be 

treated accordingly. All nonconfidential 

written submissions will be available for 

public inspection at the Office of the 

Secretary and on EDIS.5

This action is taken under the 

authority of section 337 of the Tariff Act 

of 1930, as amended (19 U.S.C. 1337), 

and of sections 201.10 and 210.8(c) of 

the Commission’s Rules of Practice and 

Procedure (19 CFR 201.10, 210.8(c)). 

By order of the Commission. 

Issued: October 16, 2014. 

Lisa R. Barton, 

Secretary to the Commission. 

[FR Doc. 2014–24972 Filed 10–20–14; 8:45 am] 

BILLING CODE 7020–02–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 13–16] 

Michael A. White, M.D.; Decision and 

Order 

On April 16, 2014, Administrative 

Law Judge (ALJ) Gail A. Randall issued 

the attached Recommended Decision 

(R.D.).1 Respondent filed Exceptions to 

the Recommended Decision. Having 

reviewed the entire record including 

Respondent’s Exceptions, I have 

decided to adopt the ALJ’s findings of 

fact, conclusions of law, and 

recommended sanction except as 

explained below.2 A discussion of 

Respondent’s Exceptions follows. 

Respondent’s Exceptions 

In his Exceptions, Respondent raises 

five different contentions. Notably, 

however, Respondent does not 

challenge any of the ALJ’s factual 

findings (including her findings that 

were based on the testimony of the 

Government’s Expert) regarding his 

prescribing of phentermine to the 

sixteen patients at issue in this 

proceeding. See generally Exceptions, at 

1–4. Nor does he challenge the ALJ’s 

legal conclusion ‘‘that Respondent 

failed to establish a bona-fide doctorpatient relationship before prescribing 

[p]hentermine to the sixteen patients at 

issue here, thus violating 21 CFR 

1306.04(a).’’ R.D. at 33; see also 

Exceptions, at 1–4. 

The ALJ also made extensive findings 

based on the results of a January 19, 

2012 hearing conducted by the 

Mississippi State Board of Medical 

Licensure regarding Respondent’s 

prescribing of phentermine to five other 

persons. GX 5. Following the hearing, at 

which Respondent was represented by 

counsel, the Board found him guilty of 

violating various provisions of both 

state law and the Board’s rules. 

More specifically, with respect to 

each of the five persons, the Board 

found that Respondent failed to obtain 

a thorough history or complete a 

thorough physical examination prior to 

initiating treatment utilizing a Schedule 

IV controlled substance.3 Id. at 49 (citing 

Miss. Code Ann. § 73–25–29(13); 25 

Miss. Code R. § 501(2)). The Board 

further found that Respondent had 

violated its rule prohibiting the 

continued prescribing of controlled 

substances classified as amphetamine 

like anorectics and/or central nervous 

system stimulants to a patient who had 

failed to lose weight after taking the 

controlled substances over a period of 

thirty days. Id. (citing Miss. Code Ann. 

§ 73–25–29(13)). 

Most significantly, with respect to 

each of the five patients at issue in the 

proceeding, the Board found 

Respondent ‘‘guilty of dispensing drugs 

having addiction-forming or addictionsustaining liability otherwise than in the 

course of legitimate professional 

practice.’’ Id. at 16 (citing Miss. Code 

Ann. § 73–25–29(3)). This finding is 

equivalent to a finding that Respondent 

violated 21 CFR 1306.04(a), which 

requires that a controlled-substance 

prescription ‘‘be issued for a legitimate 

medical purpose by an individual 

practitioner acting in the usual course of 

his professional practice.’’ 

Here again, Respondent did not 

challenge the ALJ’s findings of fact and 

conclusions of law which were based on 

the Board’s findings. Indeed, nowhere 

in his Exceptions does he dispute the 

ALJ’s legal conclusions that he violated 

the Controlled Substance Act’s 

prescription requirement with respect to 

some twenty-one patients. 

Instead, he argues that the denial of 

his application is unwarranted because 

there is no evidence that any person he 

prescribed to has been injured or died 

as a result of his unlawful prescribing of 

controlled substances. Exceptions, at 

1–2. The short answer to Respondent’s 

contention is that proving injury is not 

an element of an allegation that a 

physician violated 21 CFR 1306.04(a). 

Rather, proof of such a violation is 

established by showing that in issuing 

the prescription, the physician acted 

outside of the usual course of 

professional practice and lacked a 

legitimate medical purpose, and such 

proof establishes that a physician 

knowingly or intentionally diverted a 

controlled substance. 

Respondent also argues that the ALJ’s 

findings and recommendation are 

erroneous because he was found not 

guilty in a criminal proceeding ‘‘after 

the exact evidence was presented and 

the same witness testimony[ ] that was 

presented’’ at the DEA hearing. 

Exceptions, at 2. Putting aside whether 

the exact same evidence was presented 

at both his criminal trial and the DEA 

proceeding (the latter appearing to 

include evidence of his misconduct in 

prescribing to far more patients than 

were at issue in the former), Respondent 

ignores that the State Board also found 

him guilty of dispensing controlled 

substances other than in the course of 

legitimate professional practice (i.e., 

without a legitimate medical purpose). 

See GX 5, at 50. 

As for his related argument that ‘‘[t]he 

irony is overwhelming that the public 

who he could potentially harm did not 

buy the DEA’s assertions while sitting in 

the jury box,’’ Exceptions, at 2–3; 

Respondent ignores that because of the 

greater consequences that attach upon a 

criminal conviction, a higher standard 

of proof applies in a criminal trial than 

in an administrative proceeding. Indeed, 

given that Respondent does not 

challenge any of the ALJ’s findings with 

respect to whether he violated the CSA’s 

prescription requirement and diverted 

controlled substances, there is more 

than ample evidence to support the 

conclusion that he poses a potential 

danger to the public. See Gonzales v. 

Oregon, 546 U.S. 243, 274 (2006) (‘‘the 

prescription requirement . . . ensures 

patients use controlled substances 

under the supervision of a doctor so as 

to prevent addiction and recreational 

abuse. As a corollary, [it] also bars 

doctors from peddling to patients who 

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4While in exercising its sovereign power to 

regulate the medical profession within the State, the 

Mississippi Board may have chosen to allow 

Respondent to continue to practice medicine, this 

‘‘Agency has long held that ‘the Controlled 

Substances Act requires that the Administrator . . . 

make an independent determination [from that 

made by state officials] as to whether the granting 

of controlled substance privileges would be in the 

public interest.’ ’’ David A. Ruben, 78 FR 38363, 

38379 n.35 (2013) (quoting Mortimer Levin, 57 FR 

8680, 8681 (1992)). 

5 I have also considered his final contention, 

which takes issue with the ALJ’s finding that 

Respondent took a ‘‘hostile tone’’ during the 

hearing and argues that this finding establishes that 

the ALJ was not impartial. R.D. at 38; Exceptions, 

at 3–4. He cites no authority for the contention that 

a trier of fact cannot consider a witness’s tone in 

assessing his credibility, and because the ALJ was 

in the best position to observe Respondent’s 

demeanor during the hearing, I reject the 

contention. 

crave the drugs for those prohibited 

uses’’) (citing United States v. Moore, 

423 U.S. 122, 135, 143 (1975)). 

As further support for his contention 

that he ‘‘poses no threat or risk’’ to the 

public, Respondent points to the fact 

that the State Board has allowed him to 

continue to practice medicine.4

Exceptions, at 3. Contrary to 

Respondent’s understanding, the denial 

of his application for a DEA registration 

does not prevent him from practicing 

medicine. It only prevents him from 

dispensing controlled substances, a 

remedy which is more than warranted 

considering the extensiveness of his 

misconduct and his failure to accept 

responsibility for it. See R.D. at 37 

(noting that Respondent’s ‘‘acceptance 

of responsibility was tenuous at best,’’ 

that ‘‘not once during the hearing did 

Respondent unequivocally admit fault 

for his improper [p]hentermine 

prescriptions,’’ and that his ‘‘purported 

admission of guilt was also undermined 

by his tendency to blame others and 

make excuses for his misconduct’’). 

As the Tenth Circuit has recognized: 

The DEA may properly consider whether a 

physician admits fault in determining if the 

physician’s registration should be revoked. 

When faced with evidence that a doctor has 

a history of distributing controlled 

substances unlawfully, it is reasonable for the 

[Agency] to consider whether that doctor will 

change his or her behavior in the future. And 

that consideration is vital to whether 

continued registration is in the public 

interest. 

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

Cir. 2011) (citing Hoxie v. DEA, 419 

F.3d 477, 483 (6th Cir. 2005)); see also 

Jayam Krishna-Iyer, 74 FR 459, 462 

(2009) (holding that even where the 

evidence shows that an applicant or 

registrant has committed only a few acts 

of intentional diversion, ‘‘this Agency 

will not grant or continue the 

practitioner’s registration unless he 

accepts responsibility for his 

misconduct’’). 

As for his contention that this 

proceeding ‘‘is nothing more than a 

vindictive act by’’ the Agency because 

he was acquitted in his criminal case, 

Exceptions at 3, here again, Respondent 

ignores that two separate bodies have 

found that he knowingly diverted 

controlled substances, and the ALJ’s 

findings, which he does not challenge, 

establish that he diverted controlled 

substances to more than twenty 

patients. Because his misconduct is 

egregious and Respondent has failed to 

accept responsibility for it, I reject his 

exceptions and will adopt the ALJ’s 

recommended order that I deny his 

application.5

Order 

Pursuant to the authority vested in me 

by 21 U.S.C. 823(f), as well as 28 CFR 

0.100(b) and 0.104, I order that the 

application of Michael A. White, M.D., 

for a DEA Certificate of Registration as 

a practitioner be, and it hereby is, 

denied. This Order is effective 

immediately. 

Dated: October 10, 2014. 

Thomas M. Harrigan, 

Deputy Administrator. 

Michelle F. Gillice, Esq., and 

Frank W. Mann, Esq., for the 

Government 

Rodney A. Ray, Esq., for the Respondent 

RECOMMENDED RULINGS, FINDINGS 

OF FACT, CONCLUSIONS OF LAW, 

AND DECISION OF THE 

ADMINISTRATIVE LAW JUDGE 

Gail A. Randal, Administrative Law 

Judge. 

I. INTRODUCTION 

This proceeding is an adjudication 

pursuant to the Administrative 

Procedure Act, 5 U.S.C. § 551 et seq., to 

determine whether the Drug 

Enforcement Administration (‘‘DEA’’ or 

‘‘Government’’) should deny a 

physician’s application for a DEA 

Certificate of Registration pursuant to 21 

U.S.C. § 823(f) (2006). Without his 

registration, the physician, Michael A. 

White, M.D. (‘‘Respondent’’ or ‘‘Dr. 

White’’), would be unable to lawfully 

prescribe, dispense or otherwise handle 

controlled substances in the course of 

his medical practice. 

II. PROCEDURAL HISTORY 

The Deputy Assistant Administrator, 

Drug Enforcement Administration 

(‘‘DEA’’ or ‘‘Government’’), issued an 

Order to Show Cause (‘‘OTSC’’) dated 

July 2, 2013, proposing to deny the 

Respondent’s application for a DEA 

Certificate of Registration, as a 

practitioner, pursuant to 21 U.S.C. 

§§ 824(a)(4) and 823(f) because the 

Respondent’s registration would be 

inconsistent with the public interest, as 

that term is defined in 21 U.S.C. 

§ 823(f). [Administrative Law Judge 

Exhibit (‘‘ALJ Exh.’’) 1 at 1]. 

Specifically, the OTSC stated that 

according to a January 19, 2012 order 

(‘‘Board Order’’ or ‘‘Order’’) from the 

Mississippi State Board of Medical 

Licensure (‘‘Board’’), Respondent 

violated several state laws relating to 

controlled substances. [Id. at 2]. First, 

the OTSC alleged that, according to the 

Board Order, Respondent violated title 

73, chapter 25, section 29(3) of the 

Mississippi Code by dispensing drugs 

having addiction-forming or addictionsustaining liability outside of the course 

of legitimate professional practice. [Id.]. 

Second, the OTSC alleged that, 

according to the Board Order, 

Respondent violated Chapter 25, 

Section 501 of the Board’s Rules and 

Regulations by prescribing a Schedule 

IV controlled substance without first 

reviewing the patient’s records to 

determine if the patient had made a 

good-faith effort to lose weight using 

caloric restriction, nutritional 

counseling, behavior modification, and 

exercise. [Id.]. Third, the OTSC alleged 

that, according to the Board Order, 

Respondent violated Chapter 25, 

Section 501(2) of the Board’s Rules and 

Regulations by prescribing a Schedule 

IV controlled substance without first 

obtaining a thorough history or 

completing a thorough physical 

examination of the patient. [Id.]. Fourth, 

the OTSC alleged that, according to the 

Board Order, Respondent violated 

Chapter 25, Section 501(5)(a) of the 

Board’s Rules and Regulations by 

continuing to prescribe a Schedule IV 

controlled substance to patients who 

failed to lose weight over a thirty day 

period. [Id.]. Finally, the OTSC alleged 

that, according to the Board Order, 

Respondent’s improper prescribing of a 

Schedule IV controlled substance 

constituted unprofessional conduct 

under Mississippi Code Ann. 73–24– 

83(a). Additionally, the Order alleged 

that Respondent failed to obey the 

Board Order’s requirement that 

Respondent submit proof that he 

completed 40 hours of continuing 

medical education (‘‘CME’’). [Id. at 2–3]. 

The OTSC alleged that as a result of 

these violations, the Board suspended 

Respondent’s medical license for six 

months and permanently prohibited 

Respondent from treating patients for 

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6Before the hearing, I issued a Protective Order 

which protects the identities of third parties in 

these proceedings. [ALJ Exh. 3]. Thus, in this 

recommended decision, I will refer to all parties 

protected by the Protective Order by their initials. 

7On cross examination, Diversion Investigator 

Sean Baudier admitted that although the 

investigation began because of ‘‘initial complaints’’ 

about overdose deaths, no such overdoses were ever 

substantiated during the investigation. [Tr. 26–27]. 

In fact, DI Baudier testified that DEA did not even 

seriously investigate the reported drug overdose 

deaths because ‘‘a lot of times in overdose deaths, 

there are—there are poly drugs or alcohol 

involved.’’ [Tr. 26]. Moreover, the president of the 

Board testified that he is not aware of any injuries 

or deaths resulting from Respondent’s practice. [Tr. 

70]. Therefore, because the Government did not 

establish that any deaths occurred due to 

misconduct by Respondent, my recommendation to 

the Administrator does not take into account DI 

Baudier’s mention of deaths by overdose. 

8There is some dispute as to why Respondent 

turned away the informants on the pain 

management side of his practice. On direct 

Continued 

weight loss with controlled substances. 

[Id.at 2]. 

The OTSC further alleged that 

Respondent’s issuing of prescriptions 

for Schedule IV controlled substances 

without a legitimate medical purpose 

and outside the usual course of business 

violated 21 C.F.R. § 1306.04(a). [Id.]. 

On July 31, 2013, the Respondent, 

through counsel, timely filed a request 

for a hearing. [ALJ Exh. 2]. 

The hearing in this case took place on 

January 29, 2014 in Oxford, Mississippi. 

[ALJ Exh. 7; Transcript (‘‘Tr.’’) 1]. 

Respondent and the Government were 

each represented by counsel. At the 

hearing, the Government introduced 

documentary evidence and called three 

witnesses and Respondent called one 

witness, himself. [Tr. 3]. 

After the hearing, the Government 

and the Respondent submitted proposed 

findings of fact, conclusions of law, and 

argument. 

III. ISSUE 

The issue in this proceeding is 

whether or not the record as a whole 

establishes by a preponderance of the 

evidence that the Drug Enforcement 

Administration should deny the 

application for a DEA Certificate of 

Registration (‘‘COR’’) of Dr. Michael A. 

White, as a practitioner, pursuant to 21 

U.S.C. § 823(f), because to grant his 

application would be inconsistent with 

the public interest, as that term is 

defined in 21 U.S.C. § 823(f). [Tr. 6; ALJ 

Exh. 4 at 1]. 

IV. FINDINGS OF FACT 

A. Stipulated Facts 

The parties have stipulated to the 

following facts: 

1. Respondent applied for a DEA COR 

as a practitioner in Schedules II–V at the 

Pain Clinic LLC, 3499 Bluecutt Road, 

Suite 1, Columbus, Mississippi, 39701 

on March 21, 2012. 

2. Respondent was previously 

registered with DEA as a practitioner in 

Schedules II–V under DEA COR number 

BW3923009 at 3499 Bluecutt Road, 

Suite 1, P.O. Box 7757, Columbus, 

Mississippi, 39705. 

3. On September 22, 2011, DEA 

issued an Order to Show Cause to 

Respondent seeking revocation of his 

DEA COR BW3923009. 

4. Phentermine is a Schedule IV 

controlled substance pursuant to 21 

C.F.R. § 1308.14(e)(9). 

5. Respondent voluntarily 

surrendered his COR BW3923009 on 

March 16, 2012. 

6. On June 21, 2011, DEA and other 

law enforcement officials executed a 

search warrant at Respondent’s medical 

practice which was also his registered 

address and seized among other items, 

Respondent’s patient files. 

7. Government Exhibit #12 is a true 

and accurate copy of the Respondent’s 

patient file of patient [C.H.] 6 seized 

during the execution of a search warrant 

at Respondent’s registered address on 

June 21, 2011. 

8. Government Exhibit #13 is a true 

and accurate copy of the Respondent’s 

patient file of patient [R.G.] seized 

during the execution of a search warrant 

at Respondent’s registered address on 

June 21, 2011. 

9. Government Exhibit #14 is a true 

and accurate copy of the Respondent’s 

patient file of patient [C.B.] seized 

during the execution of a search warrant 

at Respondent’s registered address on 

June 21, 2011. 

10. Government Exhibit #15 is a true 

and accurate copy of the Respondent’s 

patient file of patient [A.G.] seized 

during the execution of a search warrant 

at Respondent’s registered address on 

June 21, 2011. 

11. Government Exhibit #16 is a true 

and accurate copy of the Respondent’s 

patient file of patient [J.H.] seized 

during the execution of a search warrant 

at Respondent’s registered address on 

June 21, 2011. 

12. Government Exhibit #17 is a true 

and accurate copy of the Respondent’s 

patient file of patient [T.H.] seized 

during the execution of a search warrant 

at Respondent’s registered address on 

June 21, 2011. 

13. Government Exhibit #18 is a true 

and accurate copy of the Respondent’s 

patient file of patient [K.H.] seized 

during the execution of a search warrant 

at Respondent’s registered address on 

June 21, 2011. 

[ALJ Exh. 4 at 1–2; ALJ Exh. 5]. 

B. Respondent’s Background 

Respondent earned his undergraduate 

degree in Chemistry and Biology from 

the University of California, Irvine. [Tr. 

186]. Thereafter, he earned his medical 

degree from the California College of 

Medicine at Irvine in 1981 and later 

completed his residency in 

anesthesiology at Emory University in 

Atlanta, Georgia. [Tr. 186–87]. He 

obtained DEA COR BW3923009 on 

March 4, 1994. [Gov’t Exh. 1 at 1]. On 

March 20, 2012, the Respondent 

surrendered this registration for cause. 

[Id.]. 

Respondent practiced anesthesiology 

in Mississippi until 2008 when, due to 

his hearing beginning to deteriorate, he 

felt he could not properly perform his 

job function and might pose a danger in 

the surgery room. [Tr. 187]. Drawing on 

his experience in pain management as 

an anesthesiologist, Respondent then 

opened a pain management clinic in 

Columbus, Mississippi. [Tr. 188]. 

Respondent started the practice ‘‘from 

scratch,’’ and most of his patients 

sought relief from neck or back pain and 

were referred by another physician. [Tr. 

188–89]. 

In the Fall of 2008, Respondent agreed 

to treat the patients of a weight loss 

physician, ‘‘Dr. Burtman,’’ who, in 

Respondent’s words, ‘‘was shut down 

by . . . the DEA and the Medical 

Board.’’ [Tr. 189]. Respondent testified 

that he did not intend his weight loss 

practice to be permanent, but that he 

maintained the weight loss patients 

because it was a financial buoy for his 

developing pain management practice. 

[Tr. 190]. 

C. Law Enforcement’s Investigation of 

Respondent 

The DEA investigation into 

Respondents’ weight loss practice began 

when the Lowndes County Narcotics 

Task Force notified DEA that 

Respondent and another doctor may be 

‘‘running pill mills’’ and that ‘‘there 

were some concerns about some 

overdose deaths.’’ 7 [Tr. 15–16]. DEA 

investigators worked together with the 

Lowndes County Narcotics Task Force, 

Mississippi Bureau of Narcotics, and the 

Mississippi State Board of Medical 

Licensure to conduct the investigation 

of Respondent’s practice. [Tr. 15]. 

During the course of the investigation, 

law enforcement officers interviewed 

Respondent’s patients and sent 

undercover informants to book 

appointments with Respondent’s 

practice. [Gov’t Exh. 5 at 36; Tr. 17]. The 

informants first attempted to book 

appointments with Respondent for pain 

management, but were turned away.8

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examination, DI Baudier testified that the 

informants were turned away on the pain 

management side because Respondent was ‘‘not 

taking any patients.’’ [Tr. 16–17]. He clarified this 

testimony on cross examination, testifying that 

Respondent turned the informants away because he 

‘‘[w]asn’t accepting new patients.’’ [Tr. 41]. 

Respondent’s counsel suggested while cross 

examining DI Baudier that the informants were 

turned away because Respondent only accepted 

new patients with referrals, not because Respondent 

was not taking new patients. [Tr. 41–42]. DI Baudier 

responded that because he did not personally make 

the phone calls to book the appointments, he could 

not dispute Respondent’s explanation. [Tr. 41, 42]. 

Respondent himself testified that all of his pain 

management patients were referred by physicians 

and that ‘‘[y]ou couldn’t walk off the street into my 

clinic.’’ [Tr. 188–89]. To the extent that it is 

relevant, I find that the Government has failed to 

establish that Respondent turned the informants 

away because he was not accepting new pain 

patients. 

[Tr. 16–17; 41–42]. When the informants 

were able to get appointments with 

Respondent for weight loss, DEA 

centered its investigation on the weight 

loss side of Respondent’s practice. [Tr. 

17, 48]. Diversion Investigator Sean 

Baudier testified that the informants 

obtained Phentermine from Respondent 

‘‘[e]very time’’ they visited 

Respondent’s practice. [Tr. 17]. 

Phentermine, also called Adipex, is a 

Schedule IV controlled substance. [Tr. 

52; ALJ Exh. 4 at 2]; 21 C.F.R. 

§ 1308.14(e)(9). 

DEA executed a warrant to search and 

seize evidence from Respondent’s 

practice on June 21, 2011 and obtained 

all patient files kept by Respondent. [Tr. 

17–18, 191; ALJ Exh. 5 at 1; Gov’t Exhs. 

12–27]. Respondent credibly testified, 

and the Government did not refute, that 

he ceased treating weight loss patients 

on the day the warrant was executed. 

[Tr. 192]. 

D. The Board Hearings and Board 

Order 

The investigation of Respondent 

resulted in the Board issuing a 

Summons and Affidavit in November of 

2011, formally charging Respondent 

with twenty three counts of misconduct. 

[Gov’t Exh. 5 at 1–33]. Respondent, 

represented by counsel, attended a 

hearing before the Board on January 19, 

2012. [Gov’t Exh. 5 at 35; Gov’t Exh. 6 

at 1–2; Tr. 51, 58–59]. Respondent did 

not testify at that hearing because 

criminal charges related to the same 

facts were pending. [Tr. 66–67]. The 

Board issued its decision orally and in 

writing on the day of the hearing. [Gov’t 

Exh. 5 at 35–52; Gov’t Exh. 6 at 215– 

218]. 

The Board considered Respondent’s 

misconduct with respect to five 

patients, J.B., A.S., T.S., C.R., and T.S., 

three of whom were confidential 

informants employed by law 

enforcement. [Gov’t Exh. 5 at 36–48]. 

Regarding those patients, the Board 

made the following factual and legal 

findings, which are binding on this 

Court under the principles of collateral 

estoppel. See David A. Ruben, 78 Fed. 

Reg. 38,363, 38,365 (DEA 2013); Robert 

L. Dougherty, M.D., 76 Fed. Reg. 16,823, 

16,830 (DEA 2011). 

1. J.B. 

J.B., referred to in the Board Order as 

‘‘Patient #1,’’ was one of Respondent’s 

patients who was interviewed by law 

enforcement during the course of its 

investigation. [Gov’t Exh. 5 at 36–37]. At 

the time she first came to see 

Respondent for weight loss on February 

2, 2009, J.B. was 5′7′′ tall and weighed 

148 pounds, ‘‘which the Board 

determine[d] is not obese.’’ [Gov’t Exh. 

5 at 37]. On the initial visit, Respondent 

issued a prescription for 30 doses of 

Phentermine and subsequently issued 

eight more prescriptions for 30 doses of 

Phentermine between March 9, 2009 

and September 27, 2010. [Gov’t Exh. 5 

at 37]. Additionally, Respondent 

prescribed to J.B. 90 doses of 

Sibutramine, a Schedule IV controlled 

substance. [Gov’t Exh. 5 at 37]. 

Respondent issued these prescriptions 

without performing a physical 

examination, properly documenting 

J.B.’s medical history, recording 

adiposity measurements such as BMI or 

waist circumference, conducting an 

EKG, conducting any laboratory testing, 

or verifying that J.B. had made goodfaith efforts to lose weight without the 

aid of controlled substances. [Gov’t Exh. 

5 at 37–38]. Furthermore, Respondent 

continued to prescribe controlled 

substances to J.B. despite the patient’s 

failure to lose weight after six months of 

treatment. [Gov’t Exh. 5 at 39]. In fact, 

after the nineteen month-long treatment, 

J.B. actually gained twenty pounds. 

[Gov’t Exh. 5 at 39]. 

2. A.S. 

A.S., referred to in the Board Order as 

‘‘Patient #2,’’ was also one of 

Respondent’s patients who cooperated 

with the law enforcement investigation. 

[Gov’t Exh. 5 at 39]. A.S. was 5′6′′ tall 

and weighed 180 pounds when she first 

saw Respondent for weight loss. [Gov’t 

Exh. 5 at 39]. She told Respondent that 

she had previously received ‘‘diet 

medication’’ from another doctor, Dr. 

Burtman, but Respondent did not 

include Dr. Burtman’s charts in A.S.’s 

file. [Gov’t Exh. 5 at 40]. 

Respondent prescribed controlled 

substances to A.S. without performing 

an adequate physical examination, 

properly documenting her medical 

history, recording adiposity 

measurements such as BMI or waist 

circumference, conducting any 

laboratory testing, or verifying that J.B. 

had made good-faith efforts to lose 

weight without the aid of controlled 

substances. [Gov’t Exh. 5 at 39–41]. In 

total, Respondent prescribed 150 doses 

of Phentermine to A.S. [Gov’t Exh. 5 at 

39]. 

3. T.S. 

T.S., referred to in the Board Order as 

‘‘Patient #3,’’ was a confidential 

informant employed by law 

enforcement to gather information about 

Respondent’s practice. [Gov’t Exh. 5 at 

41]. She was thirty four years old, 5′4′′ 

tall, and weighed 225 pounds at the 

time of her initial visit to Respondent’s 

practice. [Gov’t Exh. 5 at 41–42]. Law 

enforcement chose her to participate in 

the investigation because she is not only 

obese, but has a number of other 

medical conditions as well. [Gov’t Exh. 

5 at 41]. 

As with the other patients, 

Respondent prescribed controlled 

substances to T.S. without performing 

an adequate physical examination, 

properly documenting her medical 

history, recording adiposity 

measurements such as BMI or waist 

circumference, conducting any 

laboratory testing, or verifying that T.S 

had made good faith efforts to lose 

weight without the aid of controlled 

substances. [Gov’t Exh. 5 at 42–43]. In 

total, Respondent prescribed 150 doses 

of Phentermine to T.S. [Gov’t Exh. 5 at 

41]. 

4. C.R. 

C.R., referred to in the Board Order as 

‘‘Patient #4,’’ was another confidential 

law enforcement informant. [Gov’t Exh. 

5 at 43]. At the time of her initial visit 

with Respondent, she was twenty two 

years old, 5′3′′ tall, and weighed 139 

pounds. [Gov’t Exh. 5 at 43–44]. The 

Board found that although she was not 

obese, Respondent noted in C.R.’s chart 

that she was ‘‘overweight.’’ [Gov’t Exh. 

5 at 44]. 

As with the other patients, 

Respondent prescribed controlled 

substances to C.R. without performing 

an adequate physical examination, 

properly documenting her medical 

history, recording adiposity 

measurements such as BMI or waist 

circumference, conducting any 

laboratory testing, or verifying that C.R. 

had made good faith efforts to lose 

weight without the aid of controlled 

substances. [Gov’t Exh. 5 at 43–45]. 

Additionally, Respondent did not 

document an individualized treatment 

plan for C.R. Rather, under ‘‘Plan of 

Care’’ in the chart, Respondent merely 

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9The transcripts for the second Board hearing 

were not entered into the record, but Dr. Van Craig 

testified that Respondent told the Board at the 

hearing that he could not afford the CME courses. 

[Tr. 60]. This testimony is corroborated by 

Respondent’s own testimony in these proceedings. 

[Tr. 205–06]. 

10The record is not clear as to exactly when 

Respondent was indicted. Respondent testified that 

he was indicted four to six weeks after the Board 

issued its Order on January 19, 2012, [Tr. 192], but 

the indictment itself is not in evidence. 

wrote ‘‘Weight Loss Program Month 

#1,’’ which apparently included 

prescriptions for Phentermine and a 

‘‘Low carb Diet.’’ [Gov’t Exh. 5 at 45]. 

Respondent prescribed C.R. a total of 

120 doses of Phentermine. [Gov’t Exh. 5 

at 43]. 

5. T.S.1 

T.S.1, referred to in the Board Order 

as ‘‘Patient #5,’’ was another 

confidential informant who visited 

Respondent for weight loss. [Gov’t Exh. 

5 at 46]. At the time of her initial visit, 

she was twenty nine years old, 5′8′′ tall, 

and weighed 125 pounds. [Gov’t Exh. 5 

at 46]. The Board found that she was not 

obese. [Gov’t Exh. 5 at 46]. 

As with the other patients, 

Respondent prescribed controlled 

substances to T.S.1 without performing 

an adequate physical examination, 

properly documenting her medical 

history, recording adiposity 

measurements such as BMI or waist 

circumference, conducting any 

laboratory testing, or verifying that T.S.1 

had made good faith efforts to lose 

weight without the aid of controlled 

substances. [Gov’t Exh. 5 at 46–47]. 

Additionally, Respondent continued to 

prescribe Phentermine to T.S.1 even 

though she actually gained nine pounds 

while being on the weight loss program. 

[Gov’t Exh. 5 at 48]. In total, Respondent 

prescribed 120 doses of Phentermine to 

T.S.1. [Gov’t Exh 5 at 46]. 

6. The Board’s Conclusions of Law 

Based on these factual findings, the 

Board concluded that Respondent 

violated a number of rules and 

regulations. First, it found that 

Respondent’s failure to verify that these 

five patients made a good-faith effort to 

lose weight without the aid of 

controlled substances violated Chapter 

25, Section 501(1) of the Rules and 

Regulations of the Board, as well as title 

73, Chapter 25, section 29(13) of the 

Mississippi Code. [Gov’t Exh. 5 at 49]. 

Second, the Board found that 

Respondent’s failure to obtain full 

medical histories and perform adequate 

physical examinations of the five 

patients violated Chapter 25, Section 

501(2) of the Rules and Regulations of 

the Board, as well as title 73, Chapter 

25, section 29(13) of the Mississippi 

Code. [Gov’t Exh. 5 at 49]. 

Third, the Board found that 

Respondent’s continued prescribing of 

controlled substances to patients who 

failed to lose weight after thirty days of 

taking the controlled substances 

violated Chapter 25, Section 501(5)(a) of 

the Rules and Regulations of the Board, 

as well as title 73, Chapter 25, section 

29(13) of the Mississippi Code. [Gov’t 

Exh. 5 at 49]. 

Fourth, the Board found that 

Respondent dispensed ‘‘drugs having 

addition-forming or addition-sustaining 

liability otherwise than in the course of 

legitimate professional practice, all in 

violation of Miss. Code Ann. 73–25– 

29(3).’’ [Gov’t Exh. 5 at 50]. 

Finally, the Board found that 

Respondent’s actions constituted 

‘‘dishonorable or unethical conduct 

likely to deceive, defraud, or harm the 

public in violation of Miss. Code Ann. 

73–25–29(8)(d) and 73–24–83(a).’’ 

[Gov’t Exh. 5 at 50]. 

Having made these findings, the 

Board suspended Respondent’s medical 

license for six months, but stayed the 

suspension contingent on certain 

conditions. [Gov’t Exh. 5 at 50–51]. 

Namely, the Board ordered Respondent 

to complete certain continuing medical 

education courses within six months of 

the Board Order and to report such 

completion to the Board. [Gov’t Exh. 5 

at 50–51]. The Board also permanently 

prohibited Respondent from treating 

patients for weight loss and ordered 

Respondent to reimburse the Board for 

its costs in adjudicating the matter. 

[Gov’t Exh. 5 at 51]. Additionally, the 

Board stated that it would monitor 

Respondent’s compliance with the 

Board Order by periodically reviewing 

Respondent’s patient charts. [Gov’t Exh. 

5 at 51]. 

7. The Second Board Hearing 

In November of 2013, the Board held 

another hearing to determine why 

Respondent had not complied with the 

Board Order. [Tr. 60; Gov’t Exh. 32]. At 

that hearing, Respondent testified that 

he had not taken the CME courses 

because he could not afford them.9 [Tr. 

60]. The Board found that Respondent 

‘‘failed to comply with the . . . 

conditions as set forth in the January 19, 

2012 Determination Order. Specifically, 

[Respondent] failed to submit proof of 

successful completion of Continuing 

Medical Education (CME) hours; failed 

to communicate with the Board as to the 

status of same; and failed to reimburse 

the Board for all costs. . . .’’ [Gov’t Exh. 

32 at 5]. 

Thereafter, the Board allowed 

Respondent more time to complete the 

CME courses and reimburse the Board 

for its expenses. Specifically, the Board 

ordered Respondent to complete the 

courses and pay the Board within six 

months of this DEA hearing. [Gov’t Exh. 

32 at 5]. The Board also ordered 

Respondent to notify the Board ‘‘when 

the DEA hearing is scheduled and 

conducted.’’ [Gov’t Exh. 32 at 5]. 

At the hearing in these proceedings, 

the Board’s executive director, Dr. 

Harris Van Craig, testified that 

Respondent, to date, had not notified 

the Board of the scheduled date for the 

DEA hearing. [Tr. 63]. He also testified 

regarding Respondent’s ‘‘demeanor’’ in 

the second Board hearing. [Tr. 60–61]. 

Specifically, Dr. Van Craig testified that 

Respondent appeared ‘‘angry with the 

Board for . . . disciplining him’’ and 

that Respondent thought he had 

received ‘‘rather harsh treatment from 

the Board because of what he was 

doing.’’ [Tr. 60, 61; see also Tr. 66]. Dr. 

Van Craig also testified that Respondent 

felt he was being ‘‘singled out’’ by law 

enforcement because ‘‘other 

practitioners in his area were doing the 

same thing as he was.’’ [Tr. 60; see also 

Tr. 61]. 

E. Respondent’s Criminal Charges 

A month or two 10 after the Board 

handed down its Order, federal criminal 

charges were brought against 

Respondent for ‘‘knowingly and 

intentionally dispensing and 

distributing phentermine, which is a 

Schedule IV controlled substance[,] 

without a legitimate medical purpose 

and outside the usual course of medical 

practice.’’ [Gov’t Exh. 10 at 6; see also 

Tr. 21, 192]. A jury trial was conducted 

on October 22 and October 23, 2012, 

resulting in Respondent being acquitted 

of all charges. [Gov’t Exh. 10 at 1; Gov’t 

Exh. 11 at 1, 224; Tr. 33]. Respondent 

credibly testified, and the Government 

did not refute, that he stopped 

practicing medicine altogether on the 

day he was indicted. [Tr. 192]. 

F. The Standard of Care for Prescribing 

Phentermine 

At the hearing in these proceedings, 

the Government offered, and I certified, 

Dr. Stephen Sudderth as an expert in 

weight loss medicine and the medical 

use of Phentermine for weight loss. [Tr. 

77–78]. Dr. Sudderth is a general 

surgeon, a bariatric surgeon, and a 

bariatric physician, licensed to practice 

in Mississippi. [Tr. 72, 73]. His bariatric 

specialty means he ‘‘specializes in the 

field of metabolic and obesity disease.’’ 

[See Tr. 72–73]. He has been practicing 

weight-loss medicine for twelve years. 

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11On cross examination, counsel for Respondent 

suggested that cost sometimes prohibits lab work. 

[Tr. 170–71]. However, Respondent offered no 

evidence, expert or otherwise, to contradict Dr. 

Sudderth’s credible testimony that lab work is 

essential before prescribing Phentermine. Therefore, 

I find that lab work is required before prescribing 

Phentermine under the standard of care in 

Mississippi, regardless of the cost. 

[Tr. 73]. He attended medical school at 

Louisiana State University Medical 

School, completed his internship at 

Yale University-affiliated hospitals in 

New Haven, Connecticut, and 

completed his general surgery residency 

at the University of Nevada, Las Vegas. 

[Tr. 74–75; Gov’t Exh. 28]. He is boardcertified in bariatric medicine and 

general surgery. [Tr. 75]. He is a fellow 

of the American College of Surgeons 

and a diplomat to the American Board 

of Bariatric Medicine, which is an honor 

denoting ‘‘that you are at the top of your 

field.’’ [Tr. 75]. Dr. Sudderth testified 

that he has treated ‘‘[t]housands’’ of 

patients for weight loss in his career and 

regularly prescribes Phentermine. [Tr. 

76]. In fact, he helped draft the recent 

changes to the regulations regarding the 

prescription of Phentermine for weight 

loss. [Tr. 76]. As such, he is familiar 

with the regulations and standards both 

as they are now and as they were when 

Respondent’s misconduct occurred. [Tr. 

76–77]. 

Dr. Sudderth credibly testified 

regarding the standard of care when 

prescribing Phentermine. He testified 

that physicians should document the 

patient’s history of diet, weight, 

exercise, and controlled substance use 

‘‘to determine if they had gone through 

other programs or used drugs for the 

purpose of weight loss by a 

prescription.’’ [Tr. 83, 84]. Dr. Sudderth 

also testified that the patient’s medical 

history should be noted in the chart, 

including allergies and other medical 

conditions the patient may have. [Tr. 

85]. The physician should also note any 

medications the patient is taking, the 

patient’s primary care physician, the 

patient’s gynecological history, and the 

patient’s family medical history. [Tr. 

85]. This information should all be 

noted in the patient’s chart. [Tr. 84]. 

According to Dr. Sudderth, 

documenting this information is 

necessary for a physician to meet the 

standard of care when prescribing 

Phentermine. [Tr. 87]. 

Dr. Sudderth testified that a physical 

examination is also necessary to meet 

the standard of care. [Tr. 87, 103]. This 

means that before prescribing 

Phentermine, the physician should 

measure and document the patient’s 

vital signs, including temperature, 

pulse, blood pressure, height, and 

weight. [Tr. 87]. In addition, the 

physician should measure the patient’s 

body mass index (‘‘BMI’’), waist 

circumferences, or body fat percentage, 

each of which give ‘‘some indication of 

the patient’s fat content.’’ [Tr. 87, 93]. 

BMI, which is a ‘‘common standard 

used in most states and certainly in 

Mississippi’’ to measure adiposity, is 

calculated by dividing the patient’s 

weight by the patient’s height squared. 

[Tr. 88–90]. A BMI of 18 to 24 is 

considered ‘‘normal weight,’’ 25 to 29.9 

is considered ‘‘overweight,’’ 30 to 39 is 

considered ‘‘obese,’’ 40 to 49 is 

considered ‘‘morbidly obese,’’ and 

anything over 50 is considered ‘‘super 

morbid obese.’’ [Tr. 90]. To be 

prescribed Phentermine for weight loss, 

a patient must have a BMI of 27 or 

greater and have at least one ‘‘comorbid 

medical problem,’’ which Dr. Sudderth 

testified is ‘‘[a]nother medical problem 

that’s related directly to the weight.’’ 

[Tr. 91]. Common comorbid conditions 

include high blood pressure, diabetes, 

sleep apnea, arthritis, lower back pain, 

heartburn, urinary incontinence, breast 

cancer, and prostate cancer. [Tr. 91]. A 

patient without a comorbid condition 

must have a BMI of at least 30 to be 

prescribed Phentermine for weight loss. 

[Tr. 91]. Dr. Sudderth also testified that 

although these are the customary 

standards, a physician has some 

‘‘latitude’’ to prescribe Phentermine to a 

patient with a slightly lower BMI if the 

physician believes the patient’s weight 

is significantly aggravating a medical 

condition. [Tr. 92–93]. 

Measuring vital signs and adiposity, 

however, is not the only important part 

of the physical exam. Dr. Sudderth 

testified that various observations made 

during a routine physical exam might 

indicate the patient has medical 

conditions that are contributing to the 

patient’s weight or would make 

controlled substances unsafe to 

prescribe. [Tr. 94–98]. 

Dr. Sudderth also testified that lab 

work is ‘‘essential’’ in determining 

whether to prescribe Phentermine 

because it uncovers things that a 

physical examination typically does not. 

[Tr. 99]. Specifically, lab work can 

identify conditions that may hinder 

weight loss or make prescribing certain 

controlled substances improper, such as 

anemia, liver disease, hypothyroidism, 

and high cholesterol. [Tr. 99–101]. Dr. 

Sudderth testified that in Mississippi, 

the standard of care is to perform blood 

work and to document the results before 

or at the visit when prescribing 

Phentermine for weight loss occurs.11

[Tr. 101–02]. 

G. The Sixteen Additional Patient Files 

Dr. Sudderth also testified that he 

reviewed the patient files of sixteen of 

Respondent’s patients not included in 

the Board Order and concluded that 

Respondent did not meet the standard 

of care when he prescribed Phentermine 

to all sixteen patients. [Tr. 80; Gov’t 

Exhs. 12–27; Tr. 79–80, 106, 117, 123, 

127, 128, 133, 138, 140–41, 145, 146, 

150, 151, 152, 153]. The Government 

questioned Dr. Sudderth on only six of 

the sixteen patients whose files were 

entered into evidence: C.H., R.G., A.G., 

J.G., K.C., and P.H. 

1. C.H. 

C.H.’s height and weight at the initial 

visit were recorded in the chart as 5′6′′, 

150 pounds. [Gov’t Exh. 12 at 13; Tr. 

107–08]. No BMI was recorded, 

however, and Dr. Sudderth testified that 

he calculated C.H.’s BMI to be 24.2 

using the patient’s recorded height and 

weight. [Tr. 109, 111; Gov’t Exh. 31]. 

Based on this BMI calculation, Dr. 

Sudderth testified that C.H. did not 

qualify for Phentermine prescriptions. 

[Tr. 111]. Dr. Sudderth further testified 

that Respondent’s ‘‘impression’’ that 

C.H. is ‘‘overweight,’’ recorded in the 

chart, is an incorrect diagnosis, and that 

there are no co-morbid conditions 

recorded in C.H.’s chart that would 

justify prescribing Phentermine. [Tr. 

115]. As such, Dr. Sudderth testified 

that, in his opinion, Respondent did not 

‘‘take a thorough history of [C.H.] as 

contemplated by the State regulations.’’ 

[Tr. 115]. 

Dr. Sudderth further testified that 

while Respondent recorded C.H.’s blood 

pressure and heart rate in the chart, he 

failed to record C.H.’s weight, diet, and 

gynecological history. [Tr. 111–12]. 

Additionally, on the chart, Respondent 

had drawn ‘‘squiggly lines’’ through all 

of the spaces designed to notate that the 

various organs were ‘‘normal.’’ [Tr. 112– 

13; Gov’t Exh. 12 at 14]. The chart also 

had no indication that any lab work was 

conducted on C.H. [Tr. 114]. Thus, Dr. 

Sudderth testified that Respondent did 

not conduct a ‘‘thorough physical 

examination as contemplated under the 

regulations.’’ [Tr. 115–16]. 

Dr. Sudderth concluded that 

Respondent did not meet the standard 

of care when he prescribed C.H. 

Phentermine on her initial visit. [Tr. 

117]. He noted that the chart does not 

reflect any legitimate medical 

justification for prescribing Phentermine 

to C.H. [Tr. 123–24]. 

Additionally, Dr. Sudderth testified 

that Respondent failed to meet the 

standard of care for prescribing 

Phentermine at each of C.H.’s follow-up 

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12 Dr. Sudderth testified that simply noting the 

pregnancy status of a female patient does not 

constitute an adequate gynecological history report. 

[Tr. 136]. 

13 Dr. Sudderth noted that describing an abdomen 

as ‘‘obese’’ is inaccurate. ‘‘You may characterize it 

as protuberant, large. It may be described in many 

different ways, but you wouldn’t describe an 

abdomen as obese. You may describe a person as 

obese but not an abdomen.’’ [Tr. 131]. 

14 Dr. Sudderth explained that there is a slightly 

different standard for determining whether 

Phentermine is appropriate to prescribe to pediatric 

patients such as K.C. Specifically, children must be 

‘‘in the 99th percentile or greater’’ in relation to 

‘‘other kids their age’’ to qualify for a Phentermine 

prescription. [Tr. 144]. He testified that K.C. is a 

‘‘normal 16-year-old girl who falls in the normal 

percentile of girls.’’ [Tr. 143–44]. 

visits. [Tr. at 123]. He reached this 

conclusion partly because in each of the 

seven follow-up visits notated in the 

chart, neither Respondent nor C.H. had 

any questions or concerns about the 

weight loss plan. [Tr. 120–23; Gov’t Exh. 

12 at 11]. Dr. Sudderth testified that this 

is ‘‘very significant because I haven’t 

seen that in my 12-year career of doing 

weight loss, that there are no problems 

at any follow-up visit ever.’’ [Tr. 122]. 

2. R.G. 

R.G.’s initial height and weight were 

recorded in the chart as 5′4′′, 141 

pounds. [Tr. 125; Gov’t Exh. 13 at 13]. 

R.G.’s body fat and BMI were not 

measured, however, but Dr. Sudderth 

calculated R.G.’s BMI to be 

approximately 24, which is ‘‘normal.’’ 

[Tr. 125; Gov’t Exh. 31]. Thus, Dr. 

Sudderth testified that R.G. did not 

qualify for weight loss treatment with 

Phentermine. [Tr. 125]. 

Dr. Sudderth testified that R.G.’s 

weight, diet, exercise, and gynecological 

history were not recorded in the chart, 

except to note that R.G. is not 

pregnant.12 [Tr. 125; Gov’t Exh. 13 at 

13–14]. Like in C.H.’s chart, the 

‘‘Physical Examination’’ section of 

R.G.’s chart contained ‘‘squiggly lines’’ 

through all of the spaces designed to 

notate that the various organs were 

‘‘normal.’’ [Tr. 126; Gov’t Exh. 13 at 14]. 

Because the chart contained a line 

through the part marked ‘‘Laboratory 

Findings,’’ Dr. Sudderth testified that he 

assumed no labs were conducted. [Tr. 

126; Gov’t Exh. 13 at 14]. 

Dr. Sudderth testified that because 

R.G. has no co-morbid conditions and a 

BMI of 24, it was not appropriate to 

prescribe Phentermine to the patient. 

[Tr. 126, 127]. Also, similar to C.H.’s 

chart, Dr. Sudderth noted that the 

follow-up visits uncovered no questions 

or concerns about the weight loss 

program. [Tr. 127–28; Gov’t Exh 13 at 

11]. Thus, Dr. Sudderth concluded that 

Respondent did not meet the standard 

of care in prescribing R.G. Phentermine 

during the seven follow-up visits. [Tr. 

128; Gov’t Exh. 13 at 4–10]. In sum, Dr. 

Sudderth testified that ‘‘[t]here is no 

justification’’ for prescribing 

Phentermine to R.G. [Tr. 128]. 

3. A.G. 

A.G.’s height and weight at the initial 

visit were 5′1′′, 141 pounds. [Tr. 129, 

Gov’t Exh. 15 at 8]. A.G.’s BMI was not 

in the chart, but Dr. Sudderth calculated 

it to be 26.6. [Tr. 129; Gov’t Exh 31]. 

Respondent recorded his ‘‘impression’’ 

of A.G. as ‘‘obesity.’’ [Tr. 129; Gov’t Exh 

15 at 9]. Dr. Sudderth testified, however, 

that A.G. was not ‘‘obese,’’ but 

‘‘overweight’’ according to the standard 

in Mississippi. [Tr. 129–30]. 

Dr. Sudderth further testified that 

A.G.’s diet, weight, exercise, and 

gynecological history were not noted in 

the file except that A.G. is not pregnant 

and that ‘‘she is on a Depo shot for birth 

control.’’ [Tr. 130; Gov’t Exh. 15 at 8]. 

In physical examination section of the 

chart, there were lines through all of the 

spaces designed to notate that the 

various organs were ‘‘normal.’’ [Tr. 130– 

31; Gov’t Exh. 15 at 9]. The only organ 

with a notation other than the line was 

the abdomen, which had ‘‘obese’’ 

written in the ‘‘normal’’ column.13 [Tr. 

130–31; Gov’t Exh. 15 at 9]. No lab work 

or co-morbid conditions were indicated 

on the chart. [Tr. 131; Gov’t Exh. 15 at 

9]. Thus, Dr. Sudderth ultimately 

concluded that Respondent did not 

meet the standard of care when he 

prescribed A.G. Phentermine. [Tr. 133; 

Gov’t Exh. 15 at 4–5, 7]. 

4. J.G. 

According to the chart, J.G. weighed 

282 pounds and was 5′4′′ tall when she 

first visited Respondent for weight loss. 

[Tr. 134; Gov’t Exh 20 at 12]. Her BMI 

was not included in the chart, but Dr. 

Sudderth calculated it to be 

approximately 48, which is high enough 

to qualify for a Phentermine 

prescription. [Tr. 134; Gov’t Exh. 31]. 

Respondent recorded three co-morbid 

conditions for J.G.: High blood pressure, 

high cholesterol, and diabetes. [Tr. 134– 

35; Gov’t Exh. 20 at 12]. Dr. Sudderth 

testified that he would have ‘‘done a 

thorough history and physical’’ and 

‘‘gotten labs on this patient and an 

EKG’’ before prescribing Phentermine, 

which can aggravate the co-morbid 

conditions reported by J.G. [Tr. 135]. 

J.G.’s chart had no lab findings 

recorded. [Tr. 136–37; Gov’t Exh. 20 at 

13]. 

No weight, diet, exercise, or 

gynecological history was recorded on 

the chart except that J.G. is not 

pregnant. [Tr. 135–36; Gov’t Exh. 20 at 

12]. J.G.’s chart included heart rate and 

blood pressure measurements, but the 

section for organ examinations, like in 

the other charts, had a ‘‘squiggly line’’ 

through the ‘‘normal’’ boxes. [Tr. 136; 

Gov’t Exh. 20 at 13]. Respondent 

recorded his ‘‘impression’’ of J.G. as 

‘‘overweight,’’ which Dr. Sudderth 

testified is an inappropriate diagnosis— 

Respondent should have diagnosed J.G. 

as ‘‘morbidly obese.’’ [Tr. 137; Gov’t 

Exh. 20 at 13]. 

Dr. Sudderth testified that 

Respondent did not meet the standard 

of care when he prescribed Phentermine 

to J.G. on her first visit because 

Respondent did not conduct and record 

an adequately thorough physical 

examination and history. [Tr. 138]. 

Respondent prescribed J.G. 

Phentermine in each of six follow-up 

visits. [Tr. 139, 140; Gov’t Exh 20 at 4– 

9, 11]. Dr. Sudderth testified that a visit 

on August 9, 2010 was particularly 

troubling, since J.G.’s blood pressure 

was especially high that day, apparently 

because J.G. had not taken her blood 

pressure medication. [Tr. 138–39; Gov’t 

Exh. 20 at 10]. Dr. Sudderth testified 

that, given J.G.’s unregulated blood 

pressure, prescribing J.G. Phentermine 

on that visit fell below the standard of 

care. [Tr. 139]. Similarly, J.G.’s blood 

pressure was even higher on her next 

visit, and Respondent once again 

prescribed Phentermine. [Tr. 139–40]. 

Dr. Sudderth thus concluded that 

Respondent fell below the standard of 

care by prescribing Phentermine to J.G. 

at each follow-up visit because he failed 

to perform adequate histories and 

physicals, he ignored contraindications 

such as high blood pressure, and ‘‘he 

has no follow-up visit that is of any 

substance, whatsoever.’’ [Tr. 141]. 

5. K.C. 

K.C. was sixteen years old, weighed 

142 pounds, and was 5′4′′ tall when she 

first visited Respondent for weight loss. 

[Tr. 141–42; Gov’t Exh 21 at 9]. Her BMI 

was not recorded in her file, but Dr. 

Sudderth calculated it to be 

approximately 24, which classifies her 

weight as ‘‘normal.’’14 [Tr. 142, 144; 

Gov’t Exh. 31]. The patient chart 

included no weight, diet, or 

gynecological history recorded except 

that K.C. is not pregnant. [Tr. 143–44; 

Gov’t Exh. 21 at 9]. Notably, K.C.’s chart 

did not include any physical 

examination; in fact, the patient file did 

not even include the form Respondent 

normally used to record physical 

examinations. [Tr. 144; Gov’t Exh. 21]. 

Dr. Sudderth testified that 

Respondent fell below the standard of 

care by prescribing Phentermine on the 

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initial visit. [Tr. 144–45; Gov’t Exh. 21 

at 8]. He also testified that Respondent 

fell below the standard of care by 

prescribing Phentermine to K.C. during 

three follow-up visits, where no 

problems or concerns were reported or 

discussed. [Tr. 145–46]. Dr. Sudderth 

testified that nowhere in the file was a 

legitimate medical reason or 

justification for prescribing K.C. 

Phentermine recorded. [Tr. 146; Gov’t 

Exh. 21]. 

6. P.H 

P.H. weighed 162 pounds and was 

5′5′′ tall on her initial visit to 

Respondent. [Gov’t Exh. 27 at 22]. No 

body fat or BMI were recorded, but Dr. 

Sudderth calculated it to be 26.9, which 

is classified as ‘‘overweight.’’ [Tr. 147; 

Gov’t Exh. 31]. No weight, diet, or 

gynecological history were recorded 

except that P.H. is not pregnant. [Tr. 

147–48; Gov’t Exh. 27 at 22]. P.H.’s 

heart rate and blood pressure were 

recorded in the chart, and Dr. Sudderth 

testified that P.H. had high blood 

pressure. [Tr. 148; Gov’t Exh. 27 at 23]. 

Dr. Sudderth also testified that P.H.’s 

high blood pressure is probably 

‘‘controlled’’ because ‘‘it’s high, but it’s 

not excessively high.’’ [Tr. 149]. No lab 

work was recorded in the file. [Tr. 148]. 

Respondent recorded his ‘‘impression’’ 

of P.H. as ‘‘desires weight loss,’’ which 

Dr. Sudderth testified was an 

inappropriate diagnosis. [Tr. 149]. 

Dr. Sudderth noted that P.H.’s BMI, 

combined with her co-morbid condition 

of high blood pressure, qualified her for 

Phentermine. [Tr. 150]. Dr. Sudderth 

concluded, however, that the physical 

examination and history of P.H. fell 

below the standard of care for 

prescribing Phentermine on the initial 

visit. [Tr. 150]. 

Respondent treated P.H. for about 

three years, prescribing Phentermine at 

each of fifteen follow-up visits. [Tr. 

150–51, 152; Gov’t Exh. 27 at 4–23]. As 

with the other patients, Respondent 

noted no problems at any of the followup visits. [Tr. 151; Gov’t Exh 27 at 19– 

20]. Dr. Sudderth testified that P.H.’s 

blood pressure was high at every followup visit, and ‘‘was worsening by the 

time she finished with Dr. White.’’ [Tr. 

151; Gov’t Exh. 27 at 19–20]. Notably, 

Respondent did not diagnose or record 

P.H’s blood pressure as being high at 

any time during her treatment. [Tr. 151; 

Gov’t Exh. 27]. Dr. Sudderth concluded 

that Respondent fell below the standard 

of care each time he prescribed P.H. 

Phentermine at a follow-up visit. [Tr. 

152]. 

7. The Sixteen Patient Files 

Generally 

Outside the six patient files about 

which he specifically testified, Dr. 

Sudderth also testified generally that he 

reviewed all of the sixteen patient files 

the Government entered into evidence 

and that none of them included 

adequate histories, physicals, or lab 

work. [Tr. 106–07, 120, 152]. He thus 

concluded that Respondent fell below 

the standard of care in prescribing 

Phentermine to ‘‘[a]ll sixteen’’ of those 

patients’’ both in their initial visits, and 

in all follow-up visits. [Tr. 153]. He 

additionally testified that seven of the 

sixteen patients did not qualify for 

Phentermine based on their BMIs, 

which Dr. Sudderth calculated himself 

since they were not documented in the 

charts. [Tr. 110–11; Gov’t Exh. 31]. Dr. 

Sudderth also testified that in the 

sixteen patient files he reviewed, ‘‘there 

was no follow-up visit to speak of, of 

any substance that would qualify these 

patients to receive more Phentermine.’’ 

[Tr. 106–07]. 

H. Letters from Respondent’s Patients 

At the hearing, the Government 

offered into evidence hundreds of letters 

written by Respondent’s patients, 

vouching for the quality of care 

Respondent provided them. [Gov’t Exh. 

30; Tr. 54]. To the extent that 

Respondent relies on these letters to 

prove that denying his registration 

would impose a burden on his patients, 

I find the letters irrelevant. The Agency 

has consistently held that so-called 

‘‘community impact evidence’’ is not 

relevant in these proceedings. See Linda 

Sue Cheek, M.D., 76 Fed. Reg. 66,972, 

66,973 (DEA 2011); Steven M. 

Abbadessa, D.O., 74 Fed. Reg. 10,077, 

10,078 (DEA 2009); Mark De La Lama, 

P.A., 76 Fed. Reg. 20,011, 20,020 n.20 

(DEA 2011); Bienvenido Tan, M.D., 76 

Fed. Reg. 17,673, 17,694 n.58 (DEA 

2011); Gregory D. Owens, D.D.S, 74 Fed. 

Reg. 36,751, 36,757 & n.22 (DEA 2009); 

Kwan Bo Jin, M.D., 77 Fed. Reg. 35,021, 

35,021 (DEA 2012). 

V. STATEMENT OF LAW AND 

DISCUSSION 

A. Positions of the Parties 

1. Government’s Position 

The Government timely filed 

Government’s Proposed Findings of Fact 

and Conclusions of Law (‘‘Government’s 

Brief’’) with this Court on April 2, 2014. 

The bulk of the Government’s argument 

is that Respondent deviated from the 

standard of care by performing 

‘‘woefully inadequate’’ physical 

examinations, failing to obtain patient’s 

medical histories, and failing to measure 

patients’ BMI before prescribing 

Phentermine to the sixteen patients at 

issue in these proceedings and to the 

five patients at issue in the Board Order. 

[Gov’t Br. at 36–39]. In addition, the 

Government argues that Respondent 

violated the Board’s order to complete 

certain CME courses within six months 

of the Order. [Gov’t Br. at 39]. According 

to the Government, these facts, which 

are largely undisputed, prove that 

Respondent’s registration would be 

inconsistent with the public interest. 

[Gov’t Br. at 39–40]. 

The Government also argues that 

Respondent failed to prove that he has 

taken responsibility for his actions and 

therefore failed to rebut the 

Government’s prima facie case. [Gov’t 

Br. at 42]. The Government points out 

various portions of Respondents’ 

testimony where Respondent attempted 

to minimize his misconduct and 

criticized the laws, standards, rules, and 

regulations concerning the prescription 

of Phentermine. [Gov’t Br. at 42–45]. 

This testimony, the Government argues, 

shows that Respondent has failed to 

take responsibility for his actions. [Gov’t 

Br. at 44]. Moreover, the Government 

argues that Respondent failed to take 

responsibility for his actions in the 

criminal trial, where he testified that he 

had done nothing improper. [Gov’t Br. 

at 44]. Accordingly, the Government 

argues that Respondent has failed to 

rebut the Government’s prima facie case 

because any acceptance of 

responsibility—which is minimal—is 

not credible. [Gov’t Br. at 44–45]. 

2. Respondent’s Position 

Respondent timely filed Respondent’s 

Proposed Findings of Fact and 

Conclusions of Law (‘‘Respondent’s 

Brief’’) on April 2, 2014. Therein, 

Respondent makes three arguments. 

First, Respondent argues that his 

registration would be consistent with 

the public interest because he has never 

harmed any of his patients and has 

never been the subject of any medical 

malpractice complaint. [Resp’t Br. at 7]. 

In Respondent’s view, the fact that law 

enforcement investigated Respondent 

for months before taking any action 

supports the conclusion that 

Respondent’s misconduct was not 

seriously harmful or egregious. [Resp’t 

Br. at 8–9]. 

Second, Respondent argues that he 

has taken responsibility for his actions, 

as evidenced by his voluntary 

relinquishment of his DEA registration 

and his agreement to forego treating 

patients for weight loss. [Resp’t Br. at 7]. 

Lastly, Respondent argues that his 

registration is consistent with the public 

interest because, after a criminal trial 

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15The Deputy Administrator has the authority to 

make such a determination pursuant to 28 C.F.R. 

§§ 0.100(b), 0.104 (2013). 

16The Government argues that because 

Mississippi law prohibits physicians who have 

been the subject of a disciplinary action for 

improper prescribing practices from operating pain 

management clinics, the Board’s prohibition against 

Respondent operating a weight loss clinic ‘‘is the 

equivalent to a Board recommendation against 

Respondent handling controlled substances for pain 

management.’’ [Gov’t Br. at 31]. This argument, 

however, does not square with the Board Order, 

which allowed Respondent to practice medicine 

with full knowledge that Respondent owned a pain 

management clinic. Had the Board wished to 

restrict Respondent’s ability to practice pain 

management, it could have done so. Moreover, 

Agency precedent strongly suggests that anything 

less than a specific, direct recommendation from a 

state board to DEA regarding respondent’s 

suitability for DEA registration does not constitute 

a ‘‘recommendation’’ under factor one of the public 

interest analysis. See Mark G. Medinnus, D.D.S., 78 

Fed. Reg. 62,683, 62,692–93 (DEA 2013) (holding 

that factor one weighed neither for nor against 

granting a registration because the state board ‘‘has 

not made a specific recommendation concerning 

the granting of a DEA registration to the 

Respondent’’); George R. Smith, M.D., 78 Fed. Reg. 

44,972, 44,979 (DEA 2013) (holding that factor one 

weighed neither for nor against granting a 

registration because the state board ‘‘did not 

directly recommend that the Respondent’s DEA 

application for registration should be granted’’). I 

therefore decline to construe the Board’s findings as 

a recommendation by the Board that Respondent’s 

registration should be denied. 

and two hearings before the Board, the 

Board still saw fit to permit Respondent 

to practice medicine. [Resp’t Br. at 9– 

10]. 

B. Statement of Law and Analysis 

Pursuant to 21 U.S.C. § 823(f), the 

Deputy Administrator may deny an 

application for a DEA COR if he 

determines that such registration would 

be inconsistent with the public 

interest.15 In determining the public 

interest, the following factors are 

considered: 

(1) The recommendation of the 

appropriate State licensing board or 

professional disciplinary authority. 

(2) The applicant’s experience in 

dispensing, or conducting research with 

respect to controlled substances. 

(3) The applicant’s conviction record 

under Federal or State laws relating to 

the manufacture, distribution, or 

dispensing of controlled substances. 

(4) Compliance with applicable State, 

Federal, or local laws relating to 

controlled substances. 

(5) Such other conduct which may 

threaten the public health and safety. 

21 U.S.C. § 823(f). 

These factors are to be considered in 

the disjunctive; the Deputy 

Administrator may rely on any one or a 

combination of factors and may give 

each factor the weight he deems 

appropriate in determining whether a 

registration should be revoked or an 

application for registration be denied. 

See Robert A. Leslie, M.D., 68 Fed. Reg. 

15,227, 15,230 (DEA 2003) (citing Henry 

J. Schwartz, Jr. M.D., 54 Fed. Reg. 

16,422, 16,424 (DEA 1989)). Moreover, 

the Deputy Administrator is ‘‘not 

required to make findings as to all of the 

factors.’’ Hoxie v. DEA, 419 F.3d 477, 

482 (6th Cir. 2005); see also Morall v. 

DEA, 412 F.3d 165, 173–74 (D.C. Cir. 

2005). Thus, ‘‘this is not a contest in 

which score is kept; the Agency is not 

required to mechanically count up the 

factors and determine how many favor’’ 

each party. Jayam Krishna-Iyer, M.D., 74 

Fed. Reg. 459, 462 (DEA 2009). ‘‘Rather, 

it is an inquiry which focuses on 

protecting the public interest. . . .’’ Id. 

The Government bears the ultimate 

burden of proving that the requirements 

for registration are not satisfied. 21 

C.F.R. § 1301.44(d) (2014). Specifically, 

the Government must show that 

Respondent has committed acts that are 

inconsistent with the public interest. 21 

U.S.C. § 823(f); Jeri Hassman, M.D., 75 

Fed. Reg. 8,194, 8,227 (DEA 2010). 

However, where the Government has 

made out a prima facie case that 

Respondent’s application would be 

‘‘inconsistent with the public interest,’’ 

the burden of production shifts to the 

applicant to ‘‘present[ ] sufficient 

mitigating evidence’’ to show why he 

can be trusted with a new registration. 

See Medicine Shoppe—Jonesborough, 

73 Fed. Reg. 364, 387 (DEA 2008). To 

this point, the Agency has repeatedly 

held that the ‘‘registrant must accept 

responsibility for [his] actions and 

demonstrate that [he] will not engage in 

future misconduct.’’ Id.; see also Samuel 

S. Jackson, D.D.S., 72 Fed. Reg. 23,848, 

23,853 (DEA 2007). The Respondent 

must produce sufficient evidence that 

he can be trusted with the authority that 

a registration provides by demonstrating 

that he accepts responsibility for his 

misconduct and that the misconduct 

will not reoccur. See id.; see also 

Samuel S. Jackson, D.D.S., 72 Fed. Reg. 

at 23,853. The DEA has consistently 

held the view that ‘‘past performance is 

the best predictor of future 

performance.’’ Alra Laboratories, 59 

Fed. Reg. 50,620 (DEA 1994), aff’d, Alra 

Laboratories, Inc. v. DEA, 54 F.3d 450, 

451 (7th Cir 1995). 

Factor One: Recommendation of 

Appropriate State Licensing Board 

Recommendations of state licensing 

boards are relevant, but not dispositive, 

in determining whether a respondent 

should be permitted to maintain a 

registration. See Gregory D. Owens, 

D.D.S., 74 Fed. Reg. 36,751, 36,755 

(DEA 2009); see also Martha Hernandez, 

M.D., 62 Fed. Reg. 61,145, 61,147 (DEA 

1997). According to clear agency 

precedent, a ‘‘state license is a 

necessary, but not a sufficient condition 

for registration.’’ Robert A. Leslie, M.D., 

68 Fed. Reg. at 15,230; John H. Kennedy, 

M.D., 71 Fed. Reg. 35,705, 35,708 (DEA 

2006). 

DEA possesses ‘‘a separate oversight 

responsibility with respect to the 

handling of controlled substances,’’ 

which requires the Agency to make an 

‘‘independent determination as to 

whether the granting of [a registration] 

would be in the public interest.’’ 

Mortimer B. Levin D.O., 55 Fed. Reg. 

8,209, 8,210 (DEA 1990); see also Jayam 

Krishna-Iyer, 74 Fed. Reg. at 461. Even 

the reinstatement of a state medical 

license does not affect this Agency’s 

independent responsibility to determine 

whether a DEA registration is in the 

public interest. Levin, 55 Fed. Reg. at 

8,210. The ultimate responsibility to 

determine whether a registration is 

consistent with the public interest has 

been delegated exclusively to the DEA, 

not to entities within state government. 

Edmund Chein, M.D., 72 Fed. Reg. 

6,580, 6,590 (DEA 2007), aff’d Chein v. 

DEA, 533 F.3d 828 (D.C. Cir. 2008). 

Thus, Agency precedent holds that even 

where a respondent is licensed to 

practice medicine by a state licensing 

agency, factor one weighs neither for 

nor against registration unless the state 

licensing agency makes a direct 

recommendation regarding the 

respondent’s DEA registration. Mark G. 

Medinnus, D.D.S., 78 Fed. Reg. 62,683, 

62,692–93 (DEA 2013); George R. Smith, 

M.D., 78 Fed. Reg. 44,972, 44,979 (DEA 

2013); Robert M. Brodkin, D.P.M., 77 

Fed. Reg. 73,678, 73,681 n.5 (DEA 

2012); Jeffrey J. Becker, D.D.S., 77 Fed. 

Reg. 72,387, 72,403 (DEA 2012); Scott D. 

Fedosky, M.D., 76 Fed. Reg. 71,375, 

71,377 (DEA 2011); Paul W. Battershell, 

76 Fed. Reg. 44,359, 44,365 (DEA 2011); 

Robert L. Dougherty, 76 Fed. Reg. 

16,823, 16,833 n.13 (DEA 2011); Gilbert 

Eugene Johnson, 75 Fed. Reg. 65,663, 

65,666 n.3 (DEA 2010). 

Although it is undisputed in this case 

that Respondent’s state license is valid, 

[ALJ Exh. 4 at 4], the Board has not 

given a recommendation on whether 

Respondent’s application for a DEA 

registration should be granted. 

Therefore, factor one weighs neither for 

nor against Respondent’s registration.16

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17The standards set forth in the Rules and 

Regulations of the Board for prescribing anorectics 

were revised in 2012. [Tr. 76]. The Government 

entered into evidence the version of the regulations 

that was in place during the time in question. [Tr. 

81–82; Gov’t Exh. 29]. 

18 21 C.F.R. § 1306.04(a) provides, in relevant 

part, ‘‘A prescription for a controlled substance to 

be effective must be issued for a legitimate medical 

purpose by an individual practitioner acting in the 

usual course of his professional practice.’’ 

19 I find this reason incredible, since the 

Respondent also testified that he has a monthly 

income of $15,000. [Tr. 207]. 

Factors Two and Four: Applicant’s 

Experience with Controlled 

Substances and Applicant’s 

Compliance with Applicable State, 

Federal, or Local Laws Relating to 

Controlled Substances 

Respondent’s experiences with 

handling controlled substances, as well 

as his compliance with laws related to 

controlled substances, are relevant 

considerations under the public interest 

analysis. Pursuant to the Controlled 

Substances Act, ‘‘[p]ersons registered by 

the Attorney General under this 

subchapter to . . . dispense controlled 

substances . . . are authorized to 

possess . . . or dispense such 

substances . . . to the extent authorized 

by their registration and in conformity 

with the other provisions of this 

subchapter.’’ 21 U.S.C. § 822(b); Leonard 

E. Reaves, III, M.D., 63 Fed. Reg. 44,471, 

44,473 (DEA 1998); see also 21 C.F.R. 

§ 1301.13(a) (providing that ‘‘[n]o 

person required to be registered shall 

engage in any activity for which 

registration is required until the 

application for registration is granted 

and a Certificate of Registration is 

issued by the Administrator to such 

person.’’). As such, the DEA properly 

considers practitioners’ past compliance 

with CSA requirements and DEA 

regulations in determining whether 

registering such a practitioner would be 

in the public interest. 

The first regulation applicable here is 

DEA’s long-standing requirement that a 

prescription be issued for ‘‘a legitimate 

medical purpose by an individual 

practitioner acting in the usual course of 

his professional practice.’’ 21 C.F.R. 

§ 1306.04(a). DEA precedent establishes 

that ‘‘a practitioner must establish and 

maintain a bona-fide doctor-patient 

relationship in order to be acting ‘in the 

usual course of . . . professional 

practice’ and to issue a prescription for 

a ‘legitimate medical purpose.’ ’’ Paul H. 

Volkman, 73 Fed. Reg. 30,630, 30,642 

(DEA 2008). Whether a valid doctorpatient relationship was established is 

determined by looking to state law. 

Id. 

Here, Dr. Sudderth credibly testified 

regarding the steps physicians must take 

to create a doctor-patient relationship 

before legitimately prescribing 

Phentermine. Specifically, he testified 

that in Mississippi, before prescribing 

Phentermine, a physician must (1) 

document the patient’s history of diet, 

weight, exercise, and use of controlled 

substances for weight loss [Tr. 83–84]; 

(2) document the patient’s medical and 

family history [Tr. 85]; (3) perform and 

document a physical examination of the 

patient, including vital signs and some 

form or adiposity measurement (BMI, 

waist circumference, or body fat) [Tr. 

87–98]; and (4) perform lab work such 

as blood tests and an EKG [Tr. 99–102]. 

Dr. Sudderth further testified that to be 

prescribed Phentermine for weight loss, 

a patient must either (1) have a BMI of 

at least 30; or (2) have a BMI of at least 

27 and have at least one comorbid 

condition. [Tr. 91, 105]. Some of these 

standards, including the requirement to 

perform physicals, document histories, 

and investigate prior weight loss efforts, 

are found in Chapter 25, Section 501(1) 

and (2) of the Rules and Regulations of 

the Board.17 [Gov’t Exh. 29]. 

Dr. Sudderth testified that 

Respondent fell below this standard of 

care for each of the sixteen patient files 

he reviewed. [Tr. 80, 106]. Specifically, 

Dr. Sudderth testified that Respondent 

failed to document the patients’ 

histories, conduct or document 

adequate physical exams, measure 

patients’ BMI, or do any lab work on the 

patients. [Tr. 114, 115–16, 120, 125, 126, 

129, 130, 131, 137, 138, 142, 147, 148]. 

Additionally, Dr. Sudderth testified that 

seven of the sixteen patients had BMIs 

too low to justify prescribing 

Phentermine. [Tr. 110–11; see also Gov’t 

Exh. 31]. Further, Dr. Sudderth testified 

that Respondent failed to conduct any 

follow-up visit ‘‘of substance’’ that 

would justify the continued prescription 

of Phentermine to the patients. [Tr. 106– 

07]. 

I find Dr. Sudderth’s testimony 

credible because his credentials are 

impeccable, his testimony was 

internally and externally consistent, and 

the testimony itself was largely 

unrebutted by Respondent. Indeed, 

when asked at the hearing if he disputes 

Dr. Sudderth’s testimony, Respondent 

replied, ‘‘Why would I dispute his 

testimony? He’s an expert.’’ [Tr. 219]. 

Accordingly, I find that Respondent 

failed to establish a bona-fide doctorpatient relationship before prescribing 

Phentermine to the sixteen patients at 

issue here, thus violating 21 C.F.R. 

§ 1306.04(a).18

I also find that Respondent’s improper 

prescriptions of Phentermine to the 

sixteen patients at issue in these 

proceedings violated Chapter 25, 

Section 501(1) and (2) of the Rules and 

Regulations of the Board, which 

requires documentation of a thorough 

physical examination, medical history, 

and a good-faith effort by the patient to 

lose weight without controlled 

substances before prescribing 

anorectics. [Gov’t Exh. 29 at 1–2]. 

Moreover, as noted supra, the Board 

found that Respondent violated 

multiple rules, regulations, and statutes 

by improperly prescribing Phentermine 

to five additional patients. Specifically, 

the Board found that Respondent 

violated Chapter 25, Section 501 of the 

Rules and Regulations of the Board by 

(1) failing to verify that the five patients 

made a good-faith effort to lose weight 

without the aid of controlled 

substances; (2) failing to obtain full 

medical histories and perform adequate 

physical examinations of the five 

patients; and (3) continuing to prescribe 

controlled substances to patients who 

failed to lose weight after thirty days of 

taking the controlled substances. [Gov’t 

Exh. 5 at 49–50]. Additionally, the 

Board found that Respondent violated 

title 73, chapter 25, section 29(3) of the 

Mississippi Code by dispensing ‘‘drugs 

having addiction-forming or addictionsustaining liability otherwise than in the 

course of legitimate professional 

practice.’’ [Gov’t Exh. 5 at 50]. Finally, 

the Board found that Respondent’s 

actions constituted ‘‘dishonorable or 

unethical conduct likely to deceive, 

defraud, or harm the public, in violation 

of Miss. Code Ann. 73–25–29(8)(d) and 

73–24–83(a).’’ [Gov’t Exh. 5 at 50]. 

These findings of fact and law are 

binding on the Agency. David A. Ruben, 

M.D., 78 Fed. Reg. at 38,365–66; 

Dougherty, 76 Fed. Reg. at16,830–31. 

Respondent also failed to attend the 

CME courses required by the Board 

Order. Although Respondent offered an 

explanation for this failure—that he 

could not afford the courses 19—such 

explanations do not alter the fact that 

failing to attend the courses within six 

month of the Board Order constituted a 

violation of the Order. 

Therefore, because Respondent 

violated multiple rules, regulations, and 

statutes by prescribing Phentermine to 

twenty-one patients without a legitimate 

medical purpose and outside the usual 

course of professional practice, and 

because Respondent violated the Board 

Order by failing to attend the required 

CME courses, I find that factors two and 

four clearly weigh against Respondent’s 

registration. 

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20The Administrator interprets the term 

‘‘conviction’’ by affording it the ‘‘broadest possible 

meaning.’’ Donald Patsy Rocco, D.D.S., 50 Fed. Reg. 

34,210, 34,211 (DEA 1985). Thus, evidence of a 

guilty plea is probative under the third factor of the 

public interest analysis. See, e.g., Farmacia Ortiz, 

61 Fed. Reg. 726, 728 (DEA 1996); Roger Pharmacy, 

61 Fed. Reg. 65,079, 65,080 (DEA 1996). 

21Under the heading of factor five, the 

Government’s Brief makes a host of arguments 

about Respondent’s credibility and his failure to 

accept responsibility. [Gov’t Br. at 40–45]. These 

arguments, however, are more properly asserted in 

the context of Respondent’s rebuttal case. See, e.g., 

Jeri Hassman, M.D., 75 Fed. Reg. 8,194, 8,235–36 

(DEA 2010). I therefore address these arguments 

infra in the ‘‘Sanction’’ discussion. 

Factor Three: Applicant’s 

Conviction Record Relating to 

Controlled Substances 

Pursuant to 21 U.S.C. § 823(f)(3), the 

Deputy Administrator may deny a 

pending application for a certificate of 

registration upon a finding that the 

applicant has been convicted 20 of a 

felony related to controlled substances 

under state or federal law. See Thomas 

G. Easter II, M.D., 69 Fed. Reg. 5,579, 

5,580 (DEA 2004); Barry H. Brooks, 

M.D., 66 Fed. Reg. 18,305, 18,307 (DEA 

2001); John S. Noell, M.D., 56 Fed. Reg. 

12,038, 12,039 (DEA 1991). 

Here, it is undisputed that 

Respondent has not been convicted of 

any crimes relating to controlled 

substances. However, DEA precedent 

clearly holds that because there are ‘‘a 

number of reasons why a person may 

never be convicted of an offense falling 

under this factor, let alone be 

prosecuted for one, the absence of such 

a conviction is of considerably less 

consequence in the public interest 

inquiry.’’ Ruben, 78 Fed. Reg. at 38,379 

n.35 (quoting Dewey C. MacKay, M.D., 

75 Fed. Reg. 49,956, 49,973 (DEA 2010), 

pet. for rev. denied, MacKay v. DEA, 664 

F.3d 808 (10th Cir. 2011)). I therefore 

find that factor three weighs neither for 

nor against Respondent’s registration. 

Factor Five: Such Other Conduct 

Which May Threaten the Public 

Health and Safety 

Under the fifth public interest factor, 

the Agency considers ‘‘[s]uch other 

conduct which may threaten the public 

health and safety.’’ 21 U.S.C. § 823(f)(5). 

Because the facts of this case do not 

implicate this factor,21 I find that factor 

five weighs neither for nor against 

Respondent’s registration. 

Therefore, because the Government 

proved by a preponderance of the 

evidence that Respondent violated 

multiple statutes, rules, and regulations 

relating to dispensing controlled 

substances, I find that the Government 

met its burden to prove its prima facie 

case that Respondent’s registration 

would be inconsistent with the public 

interest. 

Sanction 

Where the Government has made out 

a prima facie case that Respondent’s 

registration would be inconsistent with 

the public interest, the burden of 

production shifts to the applicant to 

‘‘present[] sufficient mitigating 

evidence’’ to show why he can be 

trusted with a new registration. See 

Medicine Shoppe—Jonesborough, 73 

Fed. Reg. at 387. To this point, the 

Agency has repeatedly held that the 

registrant must ‘‘accept responsibility 

for [his] actions and demonstrate that 

[he] will not engage in future 

misconduct. Id.; see also Samuel S. 

Jackson, D.D.S., 72 Fed. Reg. 23,848, 

23,853 (DEA 2007). Specifically, to 

rebut the Government’s prima facie 

case, the respondent is required ‘‘to 

accept responsibility for [the 

established] misconduct, [and] also to 

demonstrate what corrective measures 

[have been] undertaken to prevent the 

re-occurrence of similar acts.’’ Jeri 

Hassman, M.D., 75 Fed. Reg. 8,194, 

8,236 (DEA 2010) (citing Jayam KrishnaIyer, M.D., 74 Fed. Reg. 459, 464 n.8 

(DEA 2009)). 

In determining whether a respondent 

has accepted responsibility and whether 

misconduct will reoccur, the Agency 

has historically looked to a number of 

considerations, including genuine 

remorse and admission of wrongdoing, 

Lawrence C. Hill, M.D., 64 Fed. Reg. 

30,060, 30,062 (DEA 1999), lapse of time 

since the wrongdoing, Norman Alpert, 

M.D., 58 Fed. Reg. 67,420, 67,421 (DEA 

1993), candor with the court and DEA 

investigators, Jeri Hassman, M.D., 75 

Fed. Reg. 8,194, 8,236 (DEA 2010), and 

attempts to minimize misconduct, 

Ronald Lynch, M.D., 75 Fed. Reg. 

78,745, 78,754 (DEA 2010). 

The Agency has placed special 

emphasis on the need to deter 

intentional diversion of controlled 

substances, which includes issuing 

prescriptions ‘‘outside of the usual 

course of professional practice and 

[without] a legitimate medical purpose.’’ 

David A. Ruben, M.D., 78 Fed. Reg. at 

38,386–87; see also Joseph Gaudio, 

M.D., 74 Fed. Reg. 10,083, 10,094–95 

(DEA 2009). ‘‘Indeed, this Agency has 

revoked a practitioner’s registration 

upon proof of as few as two acts of 

intentional diversion and has further 

explained that proof of a single act of 

intentional diversion is sufficient to 

support the revocation of a registration.’’ 

David A. Ruben, M.D., 78 Fed. Reg. at 

38,386 (citing Dewey C. MacKay, M.D., 

75 Fed. Reg. 49,956, 49,977 (DEA 

2010)). 

Here, Respondent’s improper 

prescribing methods clearly constituted 

intentional diversion. See David A. 

Ruben, M.D., 78 Fed. Reg. at 38,386–87 

(defining intentional diversion as 

prescribing controlled substances 

‘‘outside of the usual course of 

professional practice and [without] a 

legitimate medical purpose’’). The 

Agency thus has an interest in deterring 

Respondent and others from engaging in 

similar egregious behavior. That no one 

was injured as a result of Respondent’s 

misconduct is irrelevant; Agency 

precedent is clear that in light of the 

prescription drug abuse epidemic, even 

a single act of intentional diversion 

justifies revocation. David A. Ruben, 

M.D., 78 Fed. Reg. at 38,386. 

Moreover, Respondent’s purported 

acceptance of responsibility was 

tenuous at best. When asked on direct 

examination whether his weight loss 

prescribing practices were improper, he 

responded equivocally: ‘‘When I got 

busted, I realized it, yeah. I didn’t 

know—I had no idea that there was a 

strict rule on BMI.’’ [Tr. 193]. When 

asked on cross-examination whether he 

admits to prescribing controlled 

substances without medical 

justification, Respondent responded that 

he had ‘‘never given anything to 

somebody without a medical 

justification, in my opinion.’’ [Tr. 214]. 

But when pressed on the same question, 

Respondent quickly changed his tune 

and answered, ‘‘According to the rules, 

I guess, yes.’’ [Tr. 214]. Similarly, when 

asked whether his weight-loss practice 

was ‘‘improperly run,’’ Respondent 

replied, ‘‘I said I broke some rules and 

regulations. I didn’t say it was anything 

improper.’’ [Tr. 221–22]. Indeed, not 

once during the hearing did Respondent 

unequivocally admit fault for his 

improper Phentermine prescriptions. 

Respondent’s purported admission of 

guilt was also undermined by his 

tendency to blame others and make 

excuses for his misconduct. For 

example, he testified several times that 

in his weight loss practice he was ‘‘just 

doing the same practice that I know 

other physicians do.’’ [Tr. 217; see also 

Tr. 190 (‘‘. . . there were a lot of doctors 

doing it in town, and I followed what 

they did.’’)]. Indeed, when Respondent 

was asked on cross examination 

whether he believed he was ‘‘picked on 

by the DEA,’’ he responded, ‘‘I don’t 

believe it. I know it.’’ [Tr. 222]. In 

addition, Respondent admitted that his 

practices were ‘‘less than desirable,’’ 

and then, practically in the same breath, 

blamed the undesirable practices on his 

staff: ‘‘I didn’t know that [my histories 

and physicals] were that less than 

desirable because they were all done by 

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62968 Federal Register / Vol. 79, No. 203 / Tuesday, October 21, 2014 / Notices 

22 I note that immediately following this remark, 

Respondent purported to take responsibility by 

saying, ‘‘Although, I’m responsible, so I take the 

cold blame for them myself.’’ [Tr. 197]. In context, 

however, I find this acceptance of responsibility to 

be disingenuous; he made this statement only after 

clearly placing blame on someone else. 

23Respondent’s counsel, at the hearing, suggested 

that Respondent’s ‘‘loud and obnoxious’’ tone is a 

result of his hearing impairment rather than his lack 

of remorse or hostility toward the Board or the DEA. 

[Tr. 66]. During the hearing in these proceedings, 

I certainly noticed that Respondent’s hearing 

disability affected him. [E.g., Tr. 225, 226]. But 

Respondent’s hearing did not appear to be what 

motivated his tone or his statements, discussed 

supra, which gave cause for concern regarding his 

remorse and acceptance of responsibility. 

my nurse practitioners.’’ 22 [Tr. 197]. In 

short, Respondent blamed other 

physicians, the DEA, and his own staff 

for his current predicament rather than 

take the responsibility himself. 

Respondent also minimized the 

severity of his misconduct by suggesting 

that he thinks the requirements for 

prescribing Phentermine are too strict. 

For example, Respondent testified in 

these proceedings and at his criminal 

trial, ‘‘I mean, you can get a tummy 

tuck, a facelift, whatever you want, but 

you can’t get a—you can’t get a diet pill. 

Come on.’’ [Tr. 193; see also Tr. 198–99; 

Gov’t Exh. 11 at 115]. In his criminal 

trial, Respondent testified, ‘‘You can get 

phentermine over the internet from 

Canada. Nurses can write for it. It’s a 

Schedule IV drug like cough syrup. I 

mean, it’s so safe. The addiction 

potential is so low.’’ [Gov’t Exh. 11 at 

119]. Additionally, Respondent testified 

in his criminal trial that BMI 

measurements are ‘‘worthless.’’ [Tr. 216; 

Gov’t Exh. 11 at 117]. In other words, 

rather than acknowledging his faults, 

Respondent opted to criticize the 

standards put in place by the medical 

community, the Board, and the DEA. 

I also find it significant that Dr. Van 

Craig, the executive director of the 

Board, remembered Respondent as 

being ‘‘angry with the Board for 

disciplining him’’ and felt that 

Respondent believed he had received 

‘‘rather harsh treatment from the Board 

because of what he was doing.’’ [Tr. 60, 

61; see also Tr. 66]. Indeed, 

Respondent’s demeanor described by 

Dr. Van Craig is consistent with the 

hostile tone Respondent took during the 

hearings in these proceedings.23

The above-noted examples do not 

reflect someone who feels remorse for 

his misconduct or understands the 

gravity of his mistakes. Rather, they 

illustrate that Respondent takes no 

responsibility for his actions, blames 

others for his improper prescribing 

methods, and disagrees with the rules 

regarding the dispensing of 

Phentermine. Additionally, other than a 

promise to comply with the Board’s 

order to refrain from treating weight loss 

patients, Respondent has offered no 

evidence of remedial measures he has 

taken to ensure that future violations 

will not occur. As such, I find that 

Respondent has not taken responsibility 

for his misconduct and therefore has 

failed to rebut the Government’s prima 

facie case. 

VI. CONCLUSION AND 

RECOMMENDATION 

Because the Government met its 

burden to prove that Respondent’s 

registration would be inconsistent with 

the public interest, and because 

Respondent failed to rebut the 

Government’s case, I recommend that 

the Deputy Administrator deny 

Respondent’s application. 

Dated: April 16, 2014 

s/Gail A. Randall, 

Administrative Law Judge 

CERTIFICATE OF SERVICE 

This is to certify that the undersigned, 

on llllll, 2013, caused a copy of 

the foregoing to be faxed and placed in 

the interoffice mail addressed to DEA 

Headquarters, Attn: Office of Chief 

Counsel/Michelle Gillice, Esq., 8701 

Morrissette Drive, Springfield, VA 

22152, Fax: (202) 307–4946, and a copy 

to be faxed and mailed to Respondent’s 

Counsel, Rodney A. Ray, Esq., P. O. Box 

1018, Columbus, MS 39703, Fax: (662) 

329–3522. 

Carlene R. Thomas, 

Secretary to The Honorable Gail A. Randall 

[FR Doc. 2014–25025 Filed 10–20–14; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Federal Bureau of Investigation 

Meeting of the CJIS Advisory Policy 

Board 

AGENCY: Federal Bureau of Investigation 

(FBI), DOJ. 

ACTION: Meeting notice. 

SUMMARY: The purpose of this notice is 

to announce the meeting of the Federal 

Bureau of Investigation’s Criminal 

Justice Information Services (CJIS) 

Advisory Policy Board (APB). The FBI 

CJIS APB is a federal advisory 

committee established pursuant to the 

Federal Advisory Committee Act 

(FACA). This meeting announcement is 

being published as required by Section 

10 of the FACA. 

The FBI CJIS APB is responsible for 

reviewing policy issues and appropriate 

technical and operational issues related 

to the programs administered by the 

FBI’s CJIS Division, and thereafter, 

making appropriate recommendations to 

the FBI Director. The programs 

administered by the CJIS Division are 

the Next Generation Identification, 

Interstate Identification Index, Law 

Enforcement Enterprise Portal, National 

Crime Information Center, National 

Instant Criminal Background Check 

System, National Incident-Based 

Reporting System, National Data 

Exchange, and Uniform Crime 

Reporting. 

This meeting is open to the public. 

All attendees will be required to checkin at the meeting registration desk. 

Registrations will be accepted on a 

space available basis. Interested persons 

whose registrations have been accepted 

may be permitted to participate in the 

discussions at the discretion of the 

meeting chairman and with approval of 

the Designated Federal Officer (DFO). 

Any member of the public may file a 

written statement with the Board. 

Written comments shall be focused on 

the APB’s current issues under 

discussion and may not be repetitive of 

previously submitted written 

statements. Written comments should 

be provided to Mr. R. Scott Trent, DFO, 

at least seven (7) days in advance of the 

meeting so that the comments may be 

made available to the APB for their 

consideration prior to the meeting. 

Anyone requiring special 

accommodations should notify Mr. 

Trent at least seven (7) days in advance 

of the meeting. 

DATES AND TIMES: The APB will meet in 

open session from 8:30 a.m. until 5 

p.m., on December 3–4, 2014. 

ADDRESSES: The meeting will take place 

at Hyatt Regency Jacksonville, 225 E. 

Coastline Drive, Jacksonville, Florida, 

32202, telephone (904) 588–1234. 

FOR FURTHER INFORMATION CONTACT: 

Inquiries may be addressed to Ms. 

Skeeter J. Murray; Management and 

Program Analyst; CJIS Training and 

Advisory Process Unit, Resources 

Management Section; FBI CJIS Division, 

Module C2, 1000 Custer Hollow Road, 

Clarksburg, West Virginia 26306–0149; 

telephone (304) 625–3518, facsimile 

(304) 625–5090. 

Dated: October 14, 2014. 

R. Scott Trent, 

CJIS Designated Federal Officer, Criminal 

Justice Information Services Division, Federal 

Bureau of Investigation. 

[FR Doc. 2014–24966 Filed 10–20–14; 8:45 am] 

BILLING CODE 4410–02–P 

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