Hoxie v. Drug Enforcement Admin., 04-4122.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Citation419 F.3d 477
Docket NumberNo. 04-4122.,04-4122.
PartiesDavid A. HOXIE, M.D., Petitioner, v. DRUG ENFORCEMENT ADMINISTRATION, Department of Justice, Respondent.
Decision Date16 August 2005

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 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. 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 ever entering into a plea bargain. During the same interview, according to Ms. Mitchell and Mr. Beck, when asked why it took so long to complete his education, Dr. Hoxie stated that he had been in jail many times. On August 21, 2002, the DEA issued Dr. Hoxie an order to show cause, proposing that the DEA revoke his certificate of registration because: (1) he materially falsified his applications, and (2) he had committed acts which rendered his continued registration inconsistent with the public interest. In a letter to the DEA dated September 15, 2002, Dr. Hoxie reiterated his denials of past legal trouble. Dr. Hoxie requested an administrative hearing on the order to show cause, and the hearing was held in August of 2003.

At the hearing, the DEA presented three witnesses. Mr. Cokeley testified that he had searched law enforcement databases using Dr. Hoxie's name, date of birth and social security number. The search yielded the arrest reports described above, which were introduced into evidence over Dr. Hoxie's objection that the arrest reports were inadmissible hearsay. Regarding the August 1983 arrest, Mr. Cokeley testified that the custodian of records of the California Department of Justice had clarified the arrest report. According to Mr. Cokeley's conversation with the California official, Dr. Hoxie entered a plea of nolo contendere to a misdemeanor controlled substance violation and a misdemeanor violation of the vehicle code, and received a suspended 90-day jail sentence and three years' probation. Mr. Peck and Ms. Mitchell both testified to the denials that Dr. Hoxie made during their interview. Both further testified that a criminal background check of Dr. Hoxie revealed arrests and convictions in California. Neither Mr. Beck nor Ms. Mitchell was specific as to the charges Dr. Hoxie was convicted of in California.

Dr. Hoxie cross-examined the DEA's three witnesses but presented no evidence in his defense. On cross-examination, Mr. Cokeley admitted that he had no knowledge of how the arrest records were maintained, that the records were not court disposition records, and that he had not contacted the police departments involved in Dr. Hoxie's arrests. Ms. Mitchell testified on cross-examination that she had not located any court record that serves as a record of conviction of Dr. Hoxie for a controlled substance act violation.

Based on the information adduced at the hearing, the ALJ determined that the DEA established by a preponderance of the evidence that Dr. Hoxie had been convicted of a controlled substance violation in November of 1983. The ALJ concluded that the August 1983 arrest report and related documents were sufficient to establish that Dr. Hoxie pled nolo contendere to a controlled substance violation. The ALJ further noted that Dr. Hoxie made no attempt to explain his actions by testifying and offered no evidence in mitigation. The ALJ concluded that Dr. Hoxie materially falsified his applications for a DEA certificate of registration. The ALJ recommended revoking Dr. Hoxie's DEA certificate based on the material falsification of his application. The ALJ also determined that Dr. Hoxie's actions rendered his continued registration inconsistent with the public interest. The ALJ found that the arrest records demonstrated that Dr. Hoxie repeatedly violated California controlled substance law. Further, the ALJ considered Dr. Hoxie's dishonesty with Ms. Mitchell during the investigation and his failure to take responsibility for his past misconduct to be other conduct that may threaten the public health and safety. Therefore, the ALJ concluded that the public interest was served by revoking Dr. Hoxie's DEA certificate.

The Deputy Administrator of the DEA, in her final order, considered the record in its entirety and adopted in full the ALJ's decision. 69 Fed.Reg. 51,477 (Aug. 19, 2004). Based on the August 1983 arrest report and related documents, the Deputy Administrator concluded that Dr. Hoxie materially falsified his applications for a certificate of registration. The Deputy Administrator therefore revoked Dr. Hoxie's DEA registration because he had materially falsified his applications. The Deputy Administrator also concluded that Dr. Hoxie's registration was inconsistent with the public interest because of: (1) his violations of California law and past substance abuse, as evidenced by the arrest records; (2) his dishonesty in denying he had ever been arrested during the investigation; and (3) his failure to testify at the hearing. The Deputy Administrator revoked Dr. Hoxie's DEA certificate because his lack of candor and forthrightness rendered his continued registration inconsistent with the public interest. Dr. Hoxie now petitions this court for review of the DEA's decision to revoke his certificate of registration.

II.

Contrary to Dr. Hoxie's primary argument on appeal, the August 7, 1983, arrest report and related documents indicating that Dr. Hoxie pled "nolo" to two charges are sufficient to prove by a preponderance of the evidence that Dr. Hoxie was convicted of a controlled substance violation. Therefore, the DEA's decision to revoke Dr. Hoxie's certificate of registration because he made a material misrepresentation in his application is supported by substantial evidence. The August 1983 arrest report and related documents, in addition to the testimony regarding the meaning of those documents and Dr. Hoxie's silence, are substantial evidence that supports the DEA's conclusion that Dr. Hoxie made a material misrepresentation in his applications...

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