419 F.3d 477 (6th Cir. 2005), 04-4122, Hoxie v. Drug Enforcement Admin.

Docket Nº:04-4122.
Citation:419 F.3d 477
Party Name:David A. HOXIE, M.D., Petitioner, v. DRUG ENFORCEMENT ADMINISTRATION, Department of Justice, Respondent.
Case Date:August 16, 2005
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 477

419 F.3d 477 (6th Cir. 2005)

David A. HOXIE, M.D., Petitioner,

v.

DRUG ENFORCEMENT ADMINISTRATION, Department of Justice, Respondent.

No. 04-4122.

United States Court of Appeals, Sixth Circuit.

August 16, 2005

Submitted: July 26, 2005.

On Petition for Review of a Decision from the United States Department of Justice, Drug Enforcement Administration. No. 03-01.

Page 478

COUNSEL

ON BRIEF:

Kevin R. Conners, VORYS, SATER, SEYMOUR & PEASE LLP, Columbus, Ohio, for Petitioner.

Teresa A. Wallbaum, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before: ROGERS and SUTTON, Circuit Judges; FORESTER, District Judge.[*]

OPINION

ROGERS, Circuit Judge.

David A. Hoxie, M.D. petitions this court for review of the DEA Deputy Administrator's

Page 479

decision to revoke Dr. Hoxie's certificate of registration to prescribe controlled substances. The Deputy Administrator's determination that Dr. Hoxie materially falsified his applications for a certificate of registration is supported by substantial evidence, based on an arrest record indicating that Dr. Hoxie pled nolo contendere to possession of a controlled substance. Further, the Deputy Administrator's determination that Dr. Hoxie committed acts that rendered his continued registration inconsistent with the public interest was also supported by substantial evidence. Dr. Hoxie failed to comply with California controlled substance law, as evidenced by several arrests for controlled substance violations, misled DEA investigators by denying his prior criminal history, failed to testify at the hearing on his registration, and offered no evidence to explain or rebut the DEA's contentions regarding his registration. Based on the DEA's factual conclusions, the revocation of Dr. Hoxie's certificate of registration based on his actions was not arbitrary, capricious or an abuse of discretion. Therefore, Dr. Hoxie's petition for review is denied.

I.

Dr. Hoxie is a physician practicing at the Waverly Health Clinic near Columbus, Ohio. He holds medical licenses in Virginia and Ohio, and received a DEA certificate of registration in 1995. A physician must possess a DEA certificate of registration to dispense prescription drugs that appear on the DEA's controlled substances schedules. 21 U.S.C. § 823(f) (2000). Dr. Hoxie renewed his certificate of registration in 1998 and in 2001. On the initial registration application and on two renewal applications, Dr. Hoxie answered "no" to the question, "Has the applicant ever been convicted of a crime in connection with controlled substances under state or federal law?" In 2001, the DEA and the Ohio medical board began to investigate whether this was a false statement.

DEA diversion investigators Dwight Cokeley and Dawn Mitchell looked into Dr. Hoxie's background. Their investigation revealed arrest records indicating that Dr. Hoxie had been arrested seven times between 1973 and 1985 in and around Los Angeles, California. The arrest records show that Dr. Hoxie was arrested on a number of misdemeanor charges, including: (1) possession of marijuana on December 15, 1973; (2) possession of a controlled substance on September 19, 1978; (3) driving under the influence of drugs on July 6, 1980; (4) driving under the influence of alcohol and drugs on July 11, 1981; (5) possession of PCP, being under the influence of PCP, and a vehicle code infraction on August 7, 1983; (6) being under the influence of PCP on January 26, 1984; and (7) driving with a suspended license on September 25, 1984. There is no indication of the disposition of these charges, with the exception of the 1983 arrest. An arrest disposition report indicates that Dr. Hoxie entered a plea of "nolo" to two charges, "11550 (b) H&S," an apparent reference to § 11550(b) of the California Health and Safety Code, which prohibits being under the influence of a controlled substance, and "23152(a) VC Traffic Off," what appears to be a traffic offense. This disposition was confirmed by a document from the California probation department requesting notification should Dr. Hoxie be arrested at any time prior to November of 1985.

In March of 2002, Ms. Mitchell and investigator Randy Beck of the Ohio medical board came to Dr. Hoxie's office and interviewed him regarding his certificate of registration applications. During the interview, Dr. Hoxie made a series of denials.

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He denied ever being arrested, ever being arrested for controlled substance violations, ever having been convicted of a crime, ever having been on probation, and...

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