[Federal Register Volume 87, Number 96 (Wednesday, May 18, 2022)]
[Notices]
[Pages 30266-30276]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-10591]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 19-31]


Eric David Thomas, M.D.; Denial of Application

I. Introduction

    On March 25, 2020, a former Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration (hereinafter, DEA or 
Government), issued an Order to Show Cause (hereinafter, OSC) to Eric 
David Thomas, M.D., (hereinafter, Applicant) of Helena, Montana. OSC, 
at 1. The OSC proposed the denial of Applicant's DEA registration 
application No. W18015986C and ``any other application(s) for a DEA 
registration'' on the grounds that he ``materially falsified'' that 
application ``in violation of 21 U.S.C. 824(a)(1),'' and ``also 
pursuant to 21 U.S.C. 824(a)(4) and 823(f),'' alleging that his being 
registered ``would be inconsistent with the public interest as that 
term is defined in 21 U.S.C. 823(f) for violations of applicable 
Federal Law.'' Id.
    The substantive grounds for the proceeding, as more specifically 
alleged in the OSC, are, first, that Applicant's DEA registration 
application No. W18015986C ``does not set forth that . . . [he] 
previously surrendered . . . [his registration] No. FT2321797 for 
cause'' even though he was ``aware of that fact, as evidenced by . . . 
[his] agreement to surrender . . . [it] by signing and dating a Form 
DEA-104 on or about May 20, 2015.'' Id. at 5. The second substantive 
ground alleged in the OSC is that, although he did not have authority 
from DEA or New Jersey, Applicant issued at least eleven controlled 
substance prescriptions between about June 2, 2015, and August 17, 
2015. Id. at 5-7 (citing 21 U.S.C. 822(a)(2), 841(a)(1), 843(a)(2), 
802(10) and 21 CFR 1306.03(a)(2)). The third substantive ground alleged 
in the OSC is lack of candor based on Applicant's alleged provision of 
``false or misleading statements'' and alleged ``fail[ure] to answer 
questions candidly'' in ``multiple conversations and interviews with 
DEA personnel,'' and the submission of another, subsequently withdrawn, 
``falsified'' registration application (No. W16055629C) to DEA. Id. at 
7-10 (citing prior Agency decisions and 21 U.S.C. 824(a)(1)).
    The OSC notified Applicant of his right to request a hearing on the 
allegations or to submit a written statement while waiving his right to 
a hearing, the procedures for electing each option, and the 
consequences for failing to elect either option. Id. at 10-11 (citing 
21 CFR 1301.43). The OSC also notified Applicant of the opportunity to 
file a corrective action plan (hereinafter, CAP). Id. at 11-12 (citing 
21 U.S.C. 824(c)(2)(C)).
    Applicant requested a hearing. Request for Hearing for ``Eric 
Robert Thomas, MD,'' dated March 30, 2020; see also Order for 
Prehearing Statements dated March 31, 2020, at 1 (regarding ``Eric 
Thomas, M.D.''). The matter was placed on the docket of the Office of 
Administrative Law Judges and assigned to Administrative Law Judge 
(hereinafter, ALJ) Mark M. Dowd. The hearing took place by video 
teleconference from the DEA Hearing Facility in Arlington, Virginia 
from June 15, 2020 through June 17, 2020. See Transcript (hereinafter, 
Tr.) 4.
    The ALJ's Recommended Rulings, Findings of Fact, Conclusions of 
Law, and Decision of the Administrative Law Judge (hereinafter, RD) is 
dated September 29, 2020. The RD notes thirty-eight stipulations agreed 
upon by the parties and includes them in its found facts. RD, at 91-96; 
infra, section II.A. The RD finds that Applicant materially falsified 
his DEA registration application, prescribed controlled substances 
without an active DEA registration on eleven occasions, and exhibited a 
lack of candor during DEA's investigation and during the proceeding, 
thus concluding that it would be inconsistent with the public interest 
for me to grant Applicant's pending DEA registration application.\1\ 
RD, at 138-42 (citing 21 U.S.C. 823).
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    \1\ The RD proposes, if I were considering granting Applicant's 
application, that I limit Applicant's authority to Schedule V. RD, 
at 142 n.35.
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    Applicant filed exceptions to the RD. [Applicant's] Exceptions to 
Decision of September 29, 2020 dated October 19, 2020 (hereinafter, 
Appl Exceptions). The Government sought, and eventually received, leave 
to respond to Appl Exceptions. Government's Responses to [Applicant's] 
Exceptions to Recommended Decision, Findings of Fact, and Conclusions 
of Law dated October 29, 2020 (hereinafter, Govt Exceptions).
    Having considered the record in its entirety, I conclude that the 
Government failed to establish by clear, unequivocal, and convincing 
evidence that Applicant violated 21 U.S.C. 824(a)(1). I further 
conclude that there is uncontroverted, substantial record evidence, 
including Applicant's admission, that Applicant issued eleven 
controlled substance prescriptions when he had neither federal nor 
state authority to do so. I also conclude that the record evidence 
about whether Applicant exhibited candor in his interactions with the 
Agency and Agency investigators is not conclusive and, accordingly, 
that the record does not include substantial evidence of Applicant's 
OSC-alleged lack of candor.
    I conclude, based on the entire record before me, that Applicant 
did not unequivocally accept responsibility for the egregious 
violations of prescribing controlled substances eleven times when he 
lacked federal and state authority to do so. Accordingly, based on the 
entire record before me, I decline to entrust Applicant with a DEA 
registration at this time and I deny DEA registration application No. 
W18015986C.
    I set out the parties' stipulations of fact, adopting them as the 
ALJ recommended, and I make additional findings.

II. Findings of Fact

A. Stipulations of Fact

    As already discussed, the parties agreed to thirty-eight 
stipulations of fact. The ALJ recommended that they be accepted as 
fact. I agree and I adopt as fact the parties' thirty-eight 
stipulations of fact, copied verbatim below. RD, at 91.
    1. [Applicant] was licensed in the State of New Jersey, Medical 
License No. 25MA08851700.
    2. [Applicant's] New Jersey medical license, License No. 
25MA08851700,

[[Page 30267]]

was temporarily suspended by the State of New Jersey, State Board of 
Medical Examiners, and the Order so doing took effect on December 4, 
2015. Order of Temporary Licensure Suspension, In the Matter of Eric 
Thomas, M.D. License No. 25MA08851700, State of New Jersey, Department 
of Law & Public Safety, Division of Consumer Affairs, State Board of 
Medical Examiners (filed Nov. 25, 2015; effective date Dec. 4, 
2015).\2\
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    \2\ This document is Government Exhibit (hereinafter, GX) 3, 
admitted without objection. Tr. 86-88.
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    3. [Applicant] entered into a final consent order in the state 
board case involving his New Jersey medical license, License No. 
25MA08851700, that was issued, on or about, February 22, 2018. Consent 
Order, In the Matter of the Suspension or Revocation of the License of 
Eric Thomas, M.D. License No. 25MA08851700, State of New Jersey, 
Department of Law and Public Safety, Division of Consumer Affairs, 
State Board of Medical Examiners (filed Feb. 22, 2018).\3\ Pursuant to 
the Order, [Applicant] agreed ``to retire his license to practice 
medicine and surgery in the State of New Jersey, with such retirement 
to be deemed a permanent suspension.'' Id. at 2.
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    \3\ This document is GX 4, admitted without objection. Tr. 88-
89.
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    4. [Applicant] previously had a Controlled Dangerous Substance 
(``CDS'') registration in the State of New Jersey, Registration No. 
DO9767000. On or about May 20, 2015, [Applicant] signed a Consent Order 
that temporarily suspended his New Jersey CDS registration. Consent 
Order of Temporary Suspension of NJ CDS Registration, In the Matter of 
the Temporary Suspension of the NJ CDS Registration of Eric Thomas, 
M.D., State of New Jersey, Department of Law & Public Safety, Division 
of Consumer Affairs (filed May 21, 2015). Pursuant to the final consent 
order entered the [sic] in the state board case involving 
[Applicant's]'s New Jersey medical license, License No. 25MA08851700, 
[Applicant's]'s New Jersey CDS registration also was surrendered. 
Consent Order, In the Matter of the Suspension or Revocation of the 
License of Eric Thomas, M.D. License No. 25MA08851700, State of New 
Jersey, Department of Law and Public Safety, Division of Consumer 
Affairs, State Board of Medical Examiners (filed Feb. 22, 2018) at 
2.\4\
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    \4\ This document is GX 2, admitted without objection. Tr. 36-
38.
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    5. [Applicant] was issued a medical license, License No. MED-PHYS-
LIC-49958, by the State of Montana, on or about, June 20, 2016. The 
License was issued under his name and the business name of Medical 
Associates of Montana.
    6. [Applicant] was registered with DEA as a practitioner authorized 
to handle controlled substances in Schedules II-V under DEA COR number 
FT2321797 at 44 Ridge Road, North Arlington, NJ 07031.\5\ On or about 
May 20, 2015, [Applicant] voluntarily surrendered COR FT2321797 by 
submitting a Form DEA-104 that he signed and dated.
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    \5\ This document is GX 1a, admitted without objection. Tr. 98-
99.
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    7. On or about June 22, 2016, [Applicant] submitted an application 
for a DEA COR to handle controlled substances in Schedules II-V, with 
Application No. W16055629C, at 1001 South Main Street, Suite 49, 
Kalispell, MT 59901.\6\ [Applicant] withdrew this application, on or 
about, January 24, 2018.
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    \6\ This document is GX 1b, admitted without objection. Tr. 94-
95.
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    8. For Application No. W16055629C, [Applicant] answered ``Y'' or 
``Yes'' for liability question 3. [Applicant] also provided the 
following information for question 3:
    Incident Nature[:] THERE WAS CONCERN THAT DURING THE COURSE OF DR. 
THOMAS' SEEING, EXAMINING AND TREATING VARIOUS PATIENTS WITH VARIED 
MEDICAL PROBLEMS, THERE MAY HAVE BEEN A VERY FEW PATIENTS' MISUSE OF 
PRESCRIPTIONS PROVIDED FOR THEIR ALLEGED PAIN CONTROL. NONE OF THIS 
MISUSE WAS ANTICIPATED IN ANY WAY BY ME IN MY ADMINISTRATION OF 
PROVIDING PROPER HEALTH CARE TREATMENT TO MY PATIENTS.
    Incident Result[:] IN CONSIDERATION OF THIS PENDING ACCUSATION, I 
VOLUNTARILY SUSPENDED MY DEA LICENSE 13 MONTHS AGO IN GOOD FAITH IN 
ORDER TO RESPECT THE ACCUSATIONS THAT HAD BEEN MADE. DESPITE MY BEST 
EFFORTS TO PROVIDE APPROPRIATE HEALTH CARE AND TREATMENT, THESE 
ACCUSATIONS BY THE NJ MEDICAL BOARD RESULTED IN THE TEMPORARY 
SUSPENSION OF MY MEDICAL LICENSE PENDING THE CONSIDERATION STILL TO BE 
MADE BY A PROPER AND MORE APPROPRIATE, YET STILL UNSCHEDULED, ``PLENARY 
HEARING''.
    9. On or about February 21, 2018, [Applicant] submitted an 
application for a DEA COR to handle controlled substances in Schedules 
II-V, with Application No. W18015986C, at 2620 Colonial Drive, Helena, 
MT 59602.\7\ This application is currently pending, and is the subject 
of this Order.
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    \7\ This document is GX 1c, admitted without objection. Tr. 96-
97.
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    10. For Application No. W18015986C, [Applicant] answered ``Y'' or 
``Yes'' for liability question 2. [Applicant] also provided the 
following information for question 2:
    Incident Nature[:] THERE WAS CONCERN BY THE CONTROLLED DRUG 
DIVISION (CDS) THAT THERE WAS INAPPROPRIATE PRESCRIBING OF CONTROLLED 
SUBSTANCES BY DR. THOMAS FROM HIS MEDICAL OFFICE. OF THE 1,000 CHARTS 
OF [sic] DR. THOMAS HAD, SIX MEDICAL RECORDS WERE REQUESTED FOR REVIEW 
BY THE DEPUTY ATTORNEY GENERAL. AT THIS TIME, DR. THOMAS COMPLIED WITH 
ALL REQUESTS AND VOLUNTARILY SURRENDERED HIS CDS REGISTRATION 
PRIVILEGES WHILE THE CHART INSPECTION WAS BEING CONDUCTED.
    Incident Result[:] THE NJ MED BOARD HELD A HEARING WHERE THE CHARTS 
OF DR THOMAS WERE INCOMPLETELY COPIED AND GIVEN TO ANOTHER DR WHO 
INCORRECTLY CONCLUDED THAT DR THOMAS DIND'T [sic] PROVIDE GOOD MEDICAL 
CARE WHILE PRESCRIBING CDS MEDS. DR THOMAS AND LAWYER CONTACTED ANOTHER 
MEDICAL DR--TRIPLE BOARD CERTIFIED--WHO REVIEWED THE ENTIRE CHARTS AND 
CONCLUDED MEDICAL CARE GIVEN BY DR THOMAS MET OR EXCEEDED STANDARD 
PRACTICES. A CONSENT ORDER WAS THEN AGREED UPON W/DR THOMAS DENYING ANY 
WRONG DOING, NO CIVIL PENALTY MADE.
    11. On or about December 4, 2018, [Applicant] submitted an 
application for a DEA COR to handle controlled substances in Schedule 
V, with Application No. W18128011C, at 400 Conley Lake Road, Deer 
Lodge, MT 59722-8708.\8\ [Applicant] withdrew this application on or 
about March 15, 2019.
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    \8\ This document is GX 1d, admitted without objection. Tr. 97-
98.
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    12. [Applicant] has not had a DEA Registration to handle controlled 
substances since he surrendered COR No. FT2321797 for cause, on or 
about, May 20, 2015.
    13. On or about June 2, 2015, [Applicant] issued to a patient with 
the initials T.P. a controlled substance prescription for Sonata 10 mg 
capsules (20 count).\9\
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    \9\ The controlled substance prescriptions referenced in 
Stipulations 13 through 23 are compiled in GX 8. Tr. 130-32. GX 8 
was admitted without objection. Id. at 132.

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[[Page 30268]]

    14. On or about June 2, 2015, [Applicant] issued to a patient with 
the initials A.G. a controlled substance prescription for Sonata 10 mg 
capsules (30 count).
    15. On or about June 2, 2015, [Applicant] issued to a patient with 
the initials M.M. a controlled substance prescription for Sonata 10 mg 
capsules (30 count).
    16. On or about June 2, 2015, [Applicant] issued to a patient with 
the initials E.G. a controlled substance prescription for Sonata 10 mg 
capsules (30 count).
    17. On or about June 2, 2015, [Applicant] issued to a patient with 
the initials R.B. a controlled substance prescription for Sonata 10 mg 
capsules (30 count).
    18. On or about June 12, 2015, [Applicant] issued to a patient with 
the initials M.W. a controlled substance for Qsymia 7.5-46 mg capsules 
(30 count).
    19. On or about June 22, 2015, [Applicant] issued to a patient with 
the initials J.E. a controlled substance prescription for Lomotil 2.5-
0.025 mg tablets (60 count).
    20. On or about July 22, 2015, [Applicant] issued to a patient with 
the initials M.G. a controlled substance prescription for Lomotil 2.5-
0.025 mg tablets (40 count).
    21. On or about July 27, 2015, [Applicant] issued to a patient with 
the initials DC a controlled substance prescription for Belviq 10 mg 
tablets (30 count).
    22. On or about August 13, 2015, [Applicant] issued to a patient 
with the initials M.C. a controlled substance prescription for 
phenobarbital 64.8 mg tablets (30 count).
    23. On or about August 17, 2015, [Applicant] issued to a patient 
with the initials H.G. a controlled substance prescription for Restoril 
22.5 mg tablets (30 count).
    24. Sonata is the brand name for zaleplon, a Schedule IV controlled 
substance that is often used to treat insomnia.
    25. Qsymia contains phentermine and topiramate, and is a Schedule 
IV controlled substance that is often used to treat obesity.
    26. Lomotil is the brand name for diphenoxylate-atropine, a 
Schedule V controlled substance that often is used to treat irritable 
bowel syndrome and diarrhea.
    27. Belviq is the brand name for lorcaserin, a Schedule IV 
controlled substance that often is used to treat obesity.
    28. Phenobarbital is a Schedule IV controlled substance that often 
is used to treat certain types of epilepsy.
    29. Restoril is the brand name for temazepam, a Schedule IV 
controlled substance that often is used to treat insomnia.
    30. On or about July 26, 2018, [Applicant] participated in a face-
to-face interview with DEA personnel.
    31. On or about September 28, 2018, [Applicant] participated in a 
telephonic call with DEA personnel.
    32. On or about October 3, 2018, [Applicant] participated in a 
telephonic call with DEA personnel. [Applicant] participated in a 
follow-up call with DEA personnel the following day, on or about, 
October 4, 2018.
    33. On or about March 25, 2019, [Applicant] participated in a 
telephonic call with DEA personnel.
    34. On or about April 9, 2019, [Applicant] participated in a face-
to-face interview with DEA personnel. [Applicant] provided a 
handwriting exemplar to DEA personnel during this interview.
    35. On or about April 26, 2019, [Applicant] participated in a 
telephonic call with DEA personnel.
    36. Government Exhibit 2 is a true and correct copy of Consent 
Order of Temporary Suspension of NJ CDS registration, In the Matter of 
the Temporary Suspension of the NJ CDS Registration of Eric Thomas, 
M.D., State of New Jersey, Department of Law & Public Safety, Division 
of Consumer Affairs (May 21, 2015).
    37. Government Exhibit 3 is a true and correct copy of Order of 
Temporary Licensure Suspension, In the mater of Eric Thomas, M.D. 
License No. 25MA08851700, State of New Jersey, Department of Law & 
Public Safety, Division of Consumer Affairs, State Board of Medical 
Examiners (filed Nov. 25, 2015; effective date Dec. 4, 2015).
    38. Government Exhibit 4 is a true and correct copy of Consent 
Order, In the Matter of the Suspension or Revocation of the License of 
Eric Thomas, M.D. License No. 25MA08851700, State of New Jersey, 
Department of Law and Public Safety, Division of Consumer Affairs, 
State Board of Medical Examiners (filed Feb. 22, 2018).

B. The Investigation of Applicant

    According to the Government's first witness, a Diversion 
Investigator (hereinafter, NJ DI) assigned to the New York Division 
Office whose DEA work is primarily in New Jersey, he received a 
telephone call from his New Jersey Enforcement Bureau investigator 
counterparts on May 20, 2015. Tr. 55-56, 33. NJ DI testified that his 
counterparts told him they were ``in the process of temporarily 
suspending . . . [Applicant's New Jersey Controlled Dangerous 
Substances (hereinafter, CDS)] registration, and they asked if we could 
come out to obtain his DEA registration.'' \10\ Id. at 33-34; see also 
GX 2 (New Jersey Division of Consumer Affairs Consent Order of 
Temporary Suspension of N[ew] J[ersey] CDS Registration dated May 20, 
2015), at 1 (``This matter was opened . . . upon receipt of information 
that . . . [Applicant] was engaged in the prescribing of . . . [CDS] in 
the usual course of professional practice, without some ET 5/20/15 
legitimate medical purpose in violation of N.J.A.C. 13:45H-7.4.''), GX 
2, at 2 (``Through the course of the investigation, it was determined 
that . . . [Applicant] had been prescribing CDS without some ET 5/20/15 
legitimate medical purpose, notably highly addictive narcotics, to his 
patients and had knowingly prescribed CDS to known drug addicts, known 
felons and patients testing positive for Suboxone and illegal street 
drugs.'').\11\ NJ DI testified that ``typically when . . . [a New 
Jersey] administrative action occurs, in this case the suspension of a 
registration, we're contacted so that way we can follow suit . . . and 
make sure there is clarity for the person in question so that way they 
don't view it as having one license that's active and one that's not.'' 
Tr. 41. NJ DI testified that this notification process occurs 
``basically to protect the registrant holder.'' Id. NJ DI elaborated by 
stating that, ``[b]ecause . . . [Applicant] was suspending his CDS 
registration, he was no longer going to be in good standing with the 
DEA'' and ``as a result, we were seeking a surrender of his DEA 
registration at that time.'' Id.; see also id. at 46-47, 54-55.
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    \10\ NJ DI testified that a New Jersey CDS registration ``allows 
the doctor to prescribe specifically controlled substances whereas 
the medical license allows them to actually practice medicine 
overall.'' Tr. 35.
    \11\ The italicized material in these two quotes is handwritten 
above the noted text of GX 2.
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    NJ DI's testimony described his encounter with Applicant on May 20, 
2015. NJ DI testified that, since he ``was in the office when . . . 
[he] received the phone call from the state investigators,'' he ``had 
the time to put in the information to make . . . [a typed Form DEA-104 
Voluntary Surrender of Controlled Substances Privileges form] more 
legible.'' Id. at 47-48. He testified that he, not Applicant, checked 
the first box on the Form DEA-104, the one that states ``[i]n view of 
my alleged failure to comply with the Federal requirements

[[Page 30269]]

pertaining to controlled substances, and as an indication of my good 
faith in desiring to remedy any incorrect or unlawful practices on my 
part.'' Id. at 44; GX 5, at 1. NJ DI and another DI traveled to 
Applicant's office after Applicant ``had already signed the [Temporary 
New Jersey CDS Registration Suspension] Order'' and ``asked him to 
surrender his DEA registration, and presented a DEA Form[-]104.'' Tr. 
42; see also GX 5 (Signed Form DEA-104 (Voluntary Surrender of 
Controlled Substances Privileges) dated May 20, 2015), at 1; Tr. 65, 
73.
    NJ DI testified that the two DIs met with Applicant, ``explained 
who we were and explained the purpose of us being there, . . . that we 
were there seeking a surrender of his DEA registration because . . . he 
no longer possessed a CDS registration . . . in good standing, and as a 
result, the DEA was no longer going to be valid.'' Tr. 43. NJ DI 
testified that he read the Form DEA-104 to Applicant ``so that way he 
knew what he was signing'' because he ``no longer had a CDS 
registration in good standing.'' Id. NJ DI testified that Applicant 
signed the DEA-completed Form DEA-104 and dated it May 20, 2015. Id. at 
44-45. NJ DI testified that obtaining the voluntary surrender form from 
Applicant was the ``final action for us'' and that neither he nor 
anyone else at the New Jersey office of whom he is aware conducted any 
subsequent investigation of Applicant. Id. at 65-66.
    Regarding NJ DI's credibility, I agree with the RD, and I find that 
NJ DI's testimony is fully credible. RD, at 110. I shall fully credit 
it. Tr. 29-76. Accordingly, I find uncontroverted, substantial, clear, 
unequivocal, and convincing record evidence that Applicant surrendered 
his DEA registration (No. FT2321797) and signed a DEA-completed Form 
DEA-104 on May 20, 2015. See also supra, section II.A., infra, section 
II.D.
    NJ DI's testimony relates to action by the New Jersey State Board 
of Medical Examiners (hereinafter, NJMB) concerning Applicant's New 
Jersey medical license and CDS registration. Supra, section II.A. 
According to GX 4, the final Consent Order between Applicant and the 
NJMB filed on February 22, 2018, Applicant agreed to retire his medical 
license and surrender his CDS registration, and he agreed ``not to 
reapply for a New Jersey medical license or to seek a CDS registration 
in the State of New Jersey in the future.'' GX 4, at 2-4. According to 
this Consent Order, after a hearing on the application for the 
temporary suspension of Applicant's medical license and the 
``consideration of all evidence and testimony presented,'' the NJMB 
``found'' that Applicant's ``continued practice of medicine presented a 
clear and imminent danger to the public health[,] safety, and welfare, 
and therefore temporarily suspended his license to practice medicine.'' 
Id. at 1-2. The Consent Order also states that Applicant ``agrees to 
the terms of this Consent Order as a settlement of a disputed matter'' 
and ``denies any and all wrongdoing.'' Id. at 2. Accordingly, I find 
uncontroverted record evidence that Applicant denied ``any and all 
wrongdoing'' about which the NJMB found his ``continued practice of 
medicine . . . [to present] a clear and imminent danger to the public 
health'' and about which he agreed never again to apply to practice 
medicine in New Jersey.

C. The Government's Case

    In addition to NJ DI's testimony, the Government offered the 
testimonies of another DI and a Group Supervisor, and successfully 
moved thirteen exhibits into the record.\12\ The Government also 
called, obtained the testimony of, and cross-examined Applicant.
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    \12\ Three of the Government's Exhibits, GX 1, GX 12, and GX 13, 
have subparts.
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    The Government's second DI witness testified that she is assigned 
to DEA's office in Billings, Montana (hereinafter, MT DI) and that she 
is the lead investigator on DEA registration application No. 
W18015986C, the registration application that is the subject of the 
OSC.\13\ Tr. 79, 81; see also id. at 93-102. MT DI testified that 
Liability questions are part of the DEA registration application. Id. 
at 82; see also id. at 102. Her testimony described these Liability 
questions as asking applicants about state and federal license 
``trouble,'' such as revocation, suspension, and denial, and about 
``any legal troubles with controlled substances . . . of some sort.'' 
Id. at 82, 103-105. MT DI testified that affirmative responses to a 
Liability question prompt a DEA investigation, and that the failure of 
an applicant to submit an affirmative response when the true response 
to the question is in the affirmative ``could . . . [mean that the 
application is] inadvertently approved.'' Id. at 82, 103, 105-06. MT DI 
testified that it is important for DEA registration applicants to 
complete the Liability question narratives directly, truthfully, and 
honestly because it is their ``chance to basically tell what happened . 
. . so that we can trust that . . . [they are] telling the truth.'' Id. 
at 105.
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    \13\ MT DI testified about her investigation of Applicant's 
pending DEA registration application. Among other things, she 
testified that she ascertained from the Montana Department of Labor 
and Industry website that Applicant has a Montana medical license. 
Tr. 83; GX 6. GX 6 was admitted without objection. Tr. 83-85.
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    MT DI testified that Applicant truthfully answered Liability 
questions 2 and 3 in the affirmative on the DEA registration 
application about which the OSC was issued. Id. at 107; GX 1c, at 1, 3. 
She also testified, however, that Applicant's narrative response to 
Liability question 2 is not accurate, is false, and exhibits a lack of 
candor to DEA. Tr. 109, 118. Regarding this Liability question, MT DI 
specifically testified that Applicant's narrative response is not 
accurate because the Liability question is about a federal controlled 
substance registration but Applicant's narrative response does not 
``mention anything federal in any of the narrative whatsoever,'' 
including that Applicant surrendered his DEA registration.\14\ Id. at 
109. MT DI testified that this failure of Applicant's narrative 
response for Liability question 2 ``actually [to] give any of the 
details of him surrendering that federal DEA number'' is ``not full 
disclosure of everything that has happened'' and, therefore, is a lack 
of candor.\15\ Id. at 119.
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    \14\ MT DI testified that Applicant was aware that he 
surrendered his DEA registration because NJ DI gave him a copy of 
the Form DEA-104 (Voluntary Surrender of Controlled Substances 
Privileges) that he signed. Tr. 112-13. She also testified that 
Applicant was aware that he surrendered his DEA registration 
because, on a DEA registration application that Applicant had 
previously submitted and then withdrawn, he ``mentions in there that 
he surrendered his DEA.'' Tr. 110; GX 1b, at 3. This shows, MT DI 
testified, that Applicant was aware that he surrendered his DEA 
registration. Tr. 110. According to GX 1b, however, Applicant's 
narrative statement for the second liability question does not state 
that he ``surrendered'' his DEA ``registration.'' Instead, it states 
that he ``voluntarily suspended'' his ``DEA license.'' GX 1b, at 1. 
According to MT DI's testimony, she understands Applicant's 
narrative statement to be referencing the ``surrender'' of his DEA 
``registration.'' Tr. 111-12. She also testified that his having 
disclosed his surrender of his DEA registration on a previous, 
subsequently withdrawn application is not sufficient to make his 
pending DEA registration application accurate because Applicant had 
withdrawn that application and because ``every time you apply you 
have to give the details in every application.'' Id. at 116.
    \15\ Similarly, MT DI testified that Applicant falsified his 
narrative response to the affirmatively answered third liability 
question of a previously submitted, then withdrawn, DEA registration 
application, and also exhibited a lack of candor, because he failed 
to mention the suspension of his New Jersey CDS registration. Tr. 
120-21; GX 1b.
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    By querying New Jersey's Prescription Drug Monitoring Program, MT 
DI testified, she identified eleven controlled substance prescriptions 
that Applicant issued when he had neither

[[Page 30270]]

a New Jersey CDS nor a DEA registration. Id. at 122-30; GX 7. MT DI 
testified that she ``cross-checked'' the dates on these controlled 
substance prescriptions with the date Applicant surrendered his DEA 
registration and determined that Applicant had handwritten and signed 
the eleven controlled substance prescriptions after he had surrendered 
his DEA registration. Tr. 130. MT DI testified that she obtained copies 
of the eleven controlled substance prescriptions by issuing 
administrative subpoenas to the pharmacies that filled them.\16\ Id. at 
130-32; GX 8. After Applicant looked at the eleven controlled substance 
prescriptions, MT DI testified, he checked his records and concluded 
that he had, indeed, issued them. Tr. 199. According to MT DI's 
testimony, Applicant would not withdraw his pending application in the 
face of this evidence, and stated that they were not ``that big of a 
deal because they were lower level drugs.'' Id. at 151, 199.
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    \16\ The controlled substances that Applicant prescribed in the 
eleven prescriptions are Sonata (Schedule IV), Qsymia (Schedule IV), 
Lomotil (Schedule V), Belviq (Schedule IV), phenobarbital (schedule 
IV), and Restoril (Schedule IV). GX 8; Stipulations 13-29.
---------------------------------------------------------------------------

    MT DI testified that Applicant's interactions with her, in 
telephone conversations and in-person meetings, included statements 
that evidence Applicant's lack of candor. Id. at 118. MT DI testified 
that candor involves full, honest disclosure of everything that 
happened. Id. at 118-19. She testified that Applicant's denials of 
having written controlled substance prescriptions after he surrendered 
his DEA registration demonstrate a lack of candor. Id. at 141-46, 149-
51. MT DI testified that there are discrepancies between NJMB documents 
and Applicant's representations. Id. at 153-54. She testified that 
Applicant did not answer her questions about why he did not enter into 
controlled substance agreements with five individuals for whom he 
prescribed opiates on a long-term basis, thus exhibiting a lack of 
candor. Id. at 157-59.
    MT DI also testified that Applicant did not answer her questions 
related to his urine drug screen practices. Id. at 160. More 
specifically, MT DI testified that she asked Applicant why he continued 
to prescribe opiates to those whose urinalyses tested positive for 
heroin and cocaine, or for those whose urinalyses did not test positive 
for opiates he had prescribed for them, but that he did not give her an 
answer. Id. 160-62. In addition, MT DI testified that she asked 
Applicant about a specific individual, L.K., and why Applicant 
prescribed oxycodone for her without recording any basis for the 
prescription, why he continued to prescribe controlled substances for 
her even though she ``consistently failed to provide requested urine 
drug screens,'' and why his first oxycodone prescription for her did 
not document why it was for double the dosage that her previous 
physician prescribed for her. Id. at 162-70. MT DI testified that she 
did not always tell Applicant that his answers to her questions were 
not sufficient. Id. at 201-05. She also acknowledged on cross-
examination that, had she given Applicant this feedback, he would have 
been able to amend his DEA registration application. Id. at 208.
    Regarding MT DI's credibility, I agree with the RD, and I find that 
MT DI's testimony is credible. RD, at 110. I shall afford it 
considerable weight. Tr. 78-209.
    Accordingly, I find uncontroverted, substantial, clear, 
unequivocal, and convincing record evidence that Applicant truthfully 
answered Liability questions 2 and 3 in the affirmative on DEA 
registration application No. W18015986C, the application about which 
the OSC was issued. Id. at 107; GX 1c, at 1, 3; see also infra, section 
II.D. Further, I find substantial record evidence that Applicant 
handwrote and signed the eleven controlled substance prescriptions in 
GX 8 after he had surrendered his DEA registration. Tr. 130, 199; see 
also infra, section II.D.
    The Government's third witness testified that, during the times 
relevant to this adjudication, she was assigned to DEA's office in Salt 
Lake City, Utah and was a diversion Group Supervisor (hereinafter, GS). 
Tr. 240. She assigned MT DI to investigate Applicant's DEA registration 
application because that application responded affirmatively to a 
Liability question and ``[a]ll DEA applications that have yes to a 
liability question must be looked at more thoroughly before approving, 
or disapproving, or going forward with the order to show cause 
process.'' Id. at 247-48.
    The testimony of GS corroborated the testimony of MT DI concerning 
their interactions with Applicant and their assessments of his candor 
during those interactions.\17\ Supra. GS also corroborated the 
testimony of MT DI that Applicant initially denied issuing controlled 
substance prescriptions after he surrendered his DEA registration, 
pointing out that ``he was pretty firm or adamant that he had not done 
that'' and ``[u]nlike the other questions, he answered this one pretty 
quickly.'' Tr. 266. She also testified about the April 9, 2019 meeting 
in Salt Lake City with Applicant during which she obtained a 
handwriting exemplar from Applicant and at which she showed Applicant 
the eleven prescriptions MT DI obtained by administrative subpoena.\18\ 
Id. at 267-77. GS testified that Applicant ``really didn't say much'' 
when she showed him the prescriptions. Id. at 272. She testified that 
Applicant ``did not acknowledge if they were his writing or not, or if 
they were his patients or not,'' and, ``once he was flipping through 
them, there was one prescription in there where it was an . . . 
exclamation of, `That's why we're here, because of Lomotil? ' '' Id. 
She testified that his statement ``told'' her that ``these were true 
and accurate prescriptions that he wrote because he did not deny at the 
time it was his writing, but Lomotil is a very low schedule controlled 
substance.'' Id. She also testified that, from ``that kind of 
exclamation,'' it seemed to her ``he was frustrated that all of this 
time trying to get a DEA registration boiled down to writing a 
prescription after his DEA was surrendered . . . [for] such a low-level 
drug.'' Id.; see, e.g., GX 8, at 7, 8. GS testified that Applicant took 
notes on the prescriptions and said that ``he would like to check his 
records and his calendar to see what may have been going on that day.'' 
Tr. 275. According to the testimony of GS, Applicant did not ``show any 
remorse'' or ``apologize'' for issuing the prescriptions after he 
surrendered his DEA registration. Id. at 276. She testified that, 
``because of the inconsistencies still after all of this time and the 
new revelation of prescribing controlled substances after the 
surrender,'' the decision was made to go forward with ``show cause 
proceedings to deny the application.'' Id. She also testified that, 
given the substance of the New Jersey proceedings and his having 
written controlled substance prescriptions after he surrendered his DEA 
registration, an OSC would have been issued about his DEA registration 
application. Id. at 278-79.
---------------------------------------------------------------------------

    \17\ The testimony of GS specifically addressed Applicant's 
candor during the investigators' questioning of him about his 
inconsistent use of written controlled substance agreements, the 
role of urinalysis in his controlled substance prescribing, and his 
treatment of L.K. Tr. 251-65.
    \18\ Applicant's handwriting exemplar is GX 9. GX 9 was admitted 
without objection. Tr. 271.
---------------------------------------------------------------------------

    Regarding the credibility of GS, I agree with the RD and I find 
that the testimony of GS is credible. RD, at 111. I shall afford it 
considerable weight. Tr. 238-314, 690-705.
    The Government called Applicant to the stand and, through direct

[[Page 30271]]

questioning and cross-examination, solicited his testimony about his 
medical licenses, his New Jersey and DEA controlled substance 
registrations and registration applications, his employment as a 
physician, his prescribing of controlled substances, and his 
interactions with DEA investigators, among other things. See, e.g., id. 
at 328-417, 554-601, 618-23. Some of Applicant's testimony confirmed 
evidence offered by the Government and some of it conflicted with 
evidence offered by the Government. Infra, section II.D., section II.G.

D. Applicant's Case

    As already discussed, Applicant testified. Supra, section II.C. He 
also offered the testimonies of three individuals, family and friends, 
and successfully moved twelve exhibits into evidence, including 
affidavits or certifications of eight other individuals, including 
family members and friends.\19\
---------------------------------------------------------------------------

    \19\ The ALJ denied Applicant's request that an affidavit and a 
certification of two of the three individuals who offered oral 
testimony also be admitted into the record. Tr. 548.
---------------------------------------------------------------------------

    In addition to the subjects already listed about which Applicant 
testified when called by the Government, Applicant testified about his 
career before medical school, his decision to study medicine and become 
a physician, his efforts to ensure his appropriate prescribing of 
controlled substances, his acceptance of responsibility, and his 
remedial measures, among other things. Tr. 418-59, 490-529, 608-15.
    Applicant testified that he did not submit false material in 
registration applications he submitted to DEA. Id. at 356-59, 364-67.
    Applicant admitted multiple times when testifying that he issued 
eleven controlled substance prescriptions when he did not have federal 
and state authority to do so. See, e.g., id. at 359-62, 369-74, 379, 
728; see also Stipulations 12-23. Applicant's testimony admits that he 
did not realize that the medications he was prescribing were controlled 
when he wrote them. Tr. 374. He testified that he relied on drug 
representative representations that the drugs were not controlled. Id. 
at 377. He testified ``[t]hat [it] was . . . [his] mistake that . . . 
[he] didn't do due diligence to . . . look them up on the internet . . 
. [him]self.'' Id. Applicant testified that he knows of no software 
package that identifies a drug as scheduled when a prescriber is 
writing it, or a database he could have used to learn if a drug was 
scheduled. Id. at 377-78.
    Applicant denied submitting false documents to DEA, lying to DEA 
investigators, and intending to mislead DEA and DEA investigators. See, 
e.g., id. at 358-59, 381-84, 402-03, 415. He also admitted managing 
incorrectly and inappropriately those for whom he prescribed controlled 
substances. See, e.g., id. at 400-01, 404-05, 413-14. The record does 
not, however, include any statement by Applicant unequivocally 
accepting responsibility for this incorrect and inappropriate 
management of those for whom he prescribed controlled substances.
    As already discussed, in the final Consent Order with the NJMB, 
Applicant denied ``any and all wrongdoing.'' Supra, section II.B. That 
written denial was echoed in Applicant's hearing testimony, more than 
two years later. After Government counsel argued that Applicant had not 
accepted responsibility, Applicant's counsel asked him, instead, ``with 
respect to the New Jersey consent order of temporary suspension, do you 
accept that you are bound by that suspension?'' Tr. 528. Applicant 
answered, ``[y]es, absolutely,'' adding that he ``was concerned by . . 
. [Government counsel's] comments.'' Id. Applicant then added that he 
``accept[s] responsibility,'' he is ``an adult,'' he ``want[s] to do 
better,'' he is ``embarrassed by some of . . . [his] errors, and . . . 
[he] take[s] full responsibility. I regret these.'' Id.; see also id. 
at 612-13 (Applicant's testimony that he is not seeking to relitigate 
the decision of the NJMB). I find that Applicant specified neither what 
he was accepting responsibility for nor the errors of his for which he 
took ``full responsibility.''
    Also regarding acceptance of responsibility, Applicant testified 
about the second to last paragraph of his email to DEA investigators on 
August 3, 2018, stating ``if a misstep has occurred'' he has 
``tremendous desire to correct the previous action, most 
scrupulously!'' RX 13, at 2. Applicant testified that he ``typically . 
. . would have closed the meeting'' by stating ``tell me what you'd 
like me to do'' or ``[t]ell me how we can get through this so I can 
receive a DEA registration.'' Tr. 504-05. By way of further example, 
Applicant testified that he was ``trying as a doctor to do . . . [his] 
best,'' he ``recognize[d] that . . . he could be liable for these 
mistakes,'' he ``was accepting and taking ownership,'' and ``he wanted 
to figure this out and improve so . . . [he] could go forward more 
fully as a doctor, not only with . . . [his] license, but the DEA 
registration.'' Id. at 502. Applicant did not specify the ``mistakes'' 
he was accepting and taking ownership of and has not convinced me that 
he understands how his past actions did not comply with legal 
requirements.
    In sum, I find that Applicant's acceptance of responsibility ranged 
from his accepting responsibility for unspecified errors and mistakes 
and his wanting to correct any misstep that may have occurred, to being 
willing to do whatever it would take to avoid liability and to practice 
medicine with a DEA registration. Infra, section IV.
    Applicant testified that he ``learned greatly'' and 
``tremendously'' from his experience with the NJMB. Tr. 524. 
Specifically, Applicant testified that he would be ``way more cognizant 
and tight with . . . [his] documentation and record keeping.'' Id. at 
525; see also id. at 613-14. He also testified that he does not 
``believe in using narcotics at all for pain medications in any way'' 
and that he ``actually specialize[s] in non-narcotic pain relief.'' Id. 
at 525. He testified that he would accept ``monitoring and recording'' 
in return for a DEA registration, and that he is ``willing to do what 
they think they need so that . . . [he] can continue working as a 
doctor with the proper registration.'' Id.; see also id. at 528.
    Also regarding his future practice of medicine, Applicant 
testified, and introduced documentary evidence, about four continuing 
medical education courses he took.\20\ See RX 12a (Certificate of 
participation in ``Proper Prescribing of Controlled Prescription 
Drugs--June 2016'' at Vanderbilt

[[Page 30272]]

University School of Medicine), 12b (Certificate of Completion of 
``Office-Based Treatment of Opioid Use Disorders,'' an online course 
offered by the American Academy of Addiction Psychiatry), 12c 
(Certificate of Credit for ``Center for Personalized Education for 
Physicians Medical Record Keeping Seminar--June 3, 2016'' at Memorial 
Hospital University of Colorado Health).\21\ Applicant testified that 
the NJMB ``had recommended these courses in the past,'' that he ``took 
them on . . . [his] own volition so that . . . [he] could demonstrate 
that . . . [he] . . . wanted the additional information,'' and that 
they were ``the path . . . [he] took to try to have any correction 
occur in . . . [his] protocol as a physician.'' Tr. 446; see also id. 
at 442-46. The RD acknowledges the course work Applicant undertook, 
stating that Applicant ``worked admirably to improve his medical skill 
and range of abilities, and to further educate himself as to his 
professional responsibilities.'' RD, at 140. I agree.
---------------------------------------------------------------------------

    \20\ Applicant moved RX 11, his proposed CAP, into evidence. Tr. 
545-48. The Government objected and the ALJ denied Applicant's 
motion, stating that ``it would just confuse the matter, because 
it's really a pre-hearing proceeding . . . and I have no 
jurisdiction to consider it, to rule on it.'' Id. at 547. The ALJ 
also stated that the content of the proposed CAP ``is not 
inadmissible'' and that ``as format it would just be too confusing 
for the record for us to introduce this into the evidence of the 
hearing.'' Id.
    A CAP is to be submitted ``on or before the date of 
appearance.'' 21 U.S.C. 824(c)(2)(C). There is no date on RX 11. 
Applicant's Supplemental Prehearing Statement, dated May 18, 2020 
(hereinafter, Appl Supp Prehearing), addresses the proposed CAP, 
stating that Applicant ``also submits a Corrective Action Plan 
(CAP), which is attached hereto . . . [and] outlines the previous 
issues with . . . [Applicant's] registration and practice in New 
Jersey.'' Appl Supp Prehearing, at 3. The fact that Applicant's 
proposed CAP was attached to Applicant's Supplemental Prehearing 
Statement necessarily appears to mean that Applicant's proposed CAP 
was not timely filed.
    Further, the option of submitting a CAP offers a respondent the 
opportunity to avoid a hearing. That opportunity had long passed for 
Applicant when he moved his proposed CAP into evidence.
    For all of the above reasons, I agree with the ALJ's ruling not 
to admit RX 11 into evidence.
    \21\ The fourth course was about Ethics. Tr. 618. Applicant 
testified that he participated in the course actively, that he 
completed it, but that he did not receive continuing medical 
education credits for it because he did not submit the required 
final essay. Id. at 618-21. He testified that, because his New 
Jersey case was not resolved and his essay would have been sent to 
the NJMB, ``it was difficult for . . . [him] to . . . include 
information in the essay that would be compromising in . . . [his] 
issues with the . . . [NJMB]. Id. at 621.
---------------------------------------------------------------------------

    Regarding Applicant's credibility, I find that Applicant is the 
witness with the most at stake in these proceedings. For that reason, I 
shall consider Applicant's testimony with caution when his testimony 
conflicts with credible record evidence.\22\ Tr. 327-460, 489-623, 644-
45, 706-13.
---------------------------------------------------------------------------

    \22\ I note that the RD questions the credibility of some of 
Applicant's testimony, such as his testimony relating to his 
issuance of eleven controlled substance prescriptions after he 
surrendered his DEA registration. See, e.g., RD, at 126, 134.
---------------------------------------------------------------------------

    Applicant successfully offered, over the Government's objections, 
testimonial and documentary record evidence by eleven individuals. See, 
e.g., id. at 528-45, 625-89. The eleven individuals include two 
brothers, two brothers-in-law, and friends. Id. This record evidence 
includes the individuals' positive opinions about Applicant's 
integrity, honesty, and trustworthiness. See, e.g., id. at 629-30, 650-
53, 685-86. There is no record evidence that Applicant serves as the 
physician for any of these eleven individuals or for any family member 
of these individuals, let alone that Applicant has prescribed a 
controlled substance for any of them. The closest this evidence comes 
to addressing Applicant's general practice of medicine includes the 
affidavit of a mother of seven referencing her ``always'' having a 
``need of a doctor's opinion'' and whose ``first thought is always to 
call'' Applicant who ``would drop everything and make time to come to . 
. . [her] home and examine a sick child, day or night,'' the affidavit 
of a friend stating that Applicant ``provided first aid to both workers 
and homeowners with a wide variety of cuts, scratches, puncture wounds, 
and sprained ankles'' in the aftermath of Superstorm Sandy, and the 
testimony of a friend that Applicant provided him medical treatment 
only for ``very minor thing[s]'' such as an eye infection, a cold, or 
something ``very mild like that.'' RX 5, at 1; RX 10, at 2; Tr. 688.
    As past Agency decisions show, my predecessors evaluate such oral 
testimonial and written affidavit and certification evidence based on 
the relevance of their contents to the matters being adjudicated. See, 
e.g., George Pursley, M.D., 85 FR 80162, 80180 (2020). There is no 
record evidence that Applicant ever provided any of these family 
members and friends formal medical treatment, let alone issued any of 
them a controlled substance prescription. I find that the three 
individuals who testified and the eight individuals who submitted a 
written affidavit or certification provided limited evidence relevant 
to Applicant's controlled substance prescribing and to whether I should 
grant DEA registration application No. W18015986C. 21 U.S.C. 823(f).
    Accordingly, I find that the content of RX 3 through RX 10 and the 
oral testimony of Applicant's family member and friends provide limited 
evidence about Applicant's prescribing of controlled substances, an 
issue central to my legal responsibilities in this adjudication. 
Further, regarding RX 3 through RX 10, prior Agency decisions show that 
my predecessors afforded such written evidence limited weight because 
of the limited ability to assess the credibility of evidence in written 
form. See, e.g., Michael S. Moore, M.D., 76 FR 45867, 45873 (2011) 
(evaluating the weight to be attached to letters provided by the 
respondent's hospital administrators and peers in light of the fact 
that the authors were not subjected to the rigors of cross 
examination). For all of these reasons, I afford minimal weight to RX 3 
through RX 10 and to the oral testimonies of Applicant's family member 
and friends. Tr. 624-89.

E. Allegation That Applicant Materially Falsified DEA Registration 
Application No. W18015986C

    Having read and analyzed all of the record evidence, I find 
uncontroverted, substantial, clear, unequivocal, and convincing record 
evidence that affirmative responses to a Liability question prompt a 
DEA investigation. Id. at 82, 103. I further find uncontroverted, 
substantial, clear, unequivocal, and convincing record evidence that 
Applicant accurately responded ``yes'' to the second and third 
Liability questions on DEA registration application No. W18015986C. 
See, e.g., Stipulation 10; GX 1c, at 1, 3; Tr. 107. I find 
uncontroverted, substantial, clear, unequivocal, and convincing record 
evidence that NJ DI completed a Form DEA-104 and presented it to 
Applicant on May 20, 2015. See, e.g., Tr. 44. I find uncontroverted, 
substantial, clear, unequivocal, and convincing record evidence that 
Applicant signed the DEA-completed Form DEA-104 on May 20, 2015, thus 
surrendering his DEA registration. See, e.g., Stipulation 6; GX 5; Tr. 
44-45.
    I find uncontroverted, substantial, clear, unequivocal, and 
convincing record evidence that Applicant signed a Consent Order that 
temporarily suspended his New Jersey CDS registration on May 20, 2015. 
See, e.g., Stipulation 4; GX 2, at 4; Tr. 42.
    I find uncontroverted, substantial, clear, unequivocal, and 
convincing record evidence accurately setting out Applicant's responses 
to, and the narrative content of, the second and third Liability 
questions on DEA registration application No. W18015986C.\23\ See, 
e.g., Stipulation 10, GX 1c, at 1-2.
---------------------------------------------------------------------------

    \23\ While the Government's case includes mention of the 
insufficiency of Applicant's narrative responses to both the second 
and third liability questions on DEA registration application No. 
W18015986C, the OSC and other Government submissions specifically 
allege only that Applicant's narrative response to the second 
liability question is materially false. See, e.g., OSC, at 4-5.
---------------------------------------------------------------------------

F. Allegation That Applicant Issued Controlled Substance Prescriptions 
Without Federal and State Authority

    I find uncontroverted, substantial record evidence that Applicant 
admitted to issuing, and did issue, eleven controlled substance 
prescriptions when he had neither federal nor state authority to do so. 
See, e.g., Stipulations 12-23; GX 8, GX 9; Tr. 359-62, 369-74, 379, 
728.

[[Page 30273]]

G. Allegation That Applicant Did Not Exhibit Candor in His Interactions 
With the Agency and Agency Investigators

    The record evidence about whether Applicant exhibited candor in his 
interactions with the Agency and Agency investigators is not 
conclusive. Portions of Applicant's testimony and portions of the 
Government witnesses' testimonies are consistent and other portions 
conflict. For example, Applicant testified that he did not provide 
false information in Application No. W18015986C. See, e.g., Tr. 359. 
The testimony of a DEA investigator, however, disagrees. See, e.g., id. 
at 109, 118 (testimony of MT DI). By way of further example, Applicant 
testified that his statements to DEA investigators were accurate to the 
best of his knowledge when he made them. Id. at 382 (testimony about 
whether he prescribed controlled substances after he no longer had 
state and federal controlled substance prescribing authority). The 
testimony of a DEA investigator, however, challenges that portion of 
Applicant's testimony. Id. at 266-67 (testimony of GS).
    Testimony the Government solicited from Applicant about his 
statements to DEA investigators challenged the substance of testimony 
provided by MT DI and GS about some of those statements. For example, 
MT DI testified that Applicant told her that he issued the eleven 
controlled substance prescriptions in GX 8 but that ``it wasn't that 
big of a deal because they were lower level drugs,'' and GS testified 
that Applicant ``exclaimed,'' as he was flipping through those eleven 
prescriptions, ``That's why we're here, because of Lomotil?'' Id. at 
199 (testimony of MT DI), 272 (testimony of GS). Government counsel and 
the ALJ asked Applicant about the testimony of MT DI and GS concerning 
these matters. Id. at 389-94. Applicant testified that he did not 
recall making a comment to GS about Lomotil being the reason for the 
DEA investigation. Id. at 394. Regarding whether he told MT DI that, 
``because these were lower level prescriptions, it wasn't that big of a 
deal,'' Applicant testified that ``[t]hat might have been her 
interpretation, but any scheduled medication is important. There are 
different degrees of oxycodone's schedule 2 versus something that's 
schedule 5. But without a DEA or CDS I cannot write it.'' Id. at 389; 
see also id. at 391-92 (Applicant's testimony that he did not 
specifically recall saying low-level prescriptions are not ``that big 
of a deal'' and that ``[i]n fact, when . . . [he] lost . . . [his] DEA 
CDS, . . . [he] was calling pharmacies telling them please don't fill 
any schedule medications, . . . [he doesn't] have . . . [his] DEA or . 
. . [his] CDS, so that they were aware. So, . . . [he doesn't] want to 
trivialize the fact that . . . [he] wrote a prescription that was a 
Schedule V and not a Schedule II.''), id. at 393 (He ``can't recall 
that. . . . [He doesn't] think it's logical for someone to hear, for . 
. . [MT DI] to interpret that in the conversation if . . . [he] did 
that.''). He further testified that ``it doesn't seem unreasonable that 
when . . . [he] was asked if . . . [he] wrote--and . . . [he] was 
thinking about narcotics that . . . [he] was surprised that it was 
something not narcotic related, that it was a [B]elviq or lower.'' Id. 
at 390. He testified that he did not recall specifically saying that 
prescribing ``low-level prescriptions'' is not ``that big of a deal,'' 
yet he was ``giving her [MT DI] the benefit of the doubt'' that he 
wears his emotions on his face, and that he does not ``think it's not 
out of the realm of possibilities . . . [a]nd so . . . [he] won't deny 
it.'' \24\ Id. at 390-92.
---------------------------------------------------------------------------

    \24\ In the Government's later questioning, counsel clarified 
that he was asking Applicant about a conversation with MT DI, not a 
face-to-face meeting with her. Tr. 392. It is possible that 
Applicant was testifying about the broad ``no big deal''/Schedule II 
versus Schedule V allegation both DEA investigators raised in their 
testimonies.
---------------------------------------------------------------------------

    By way of further example, DEA investigators and Applicant 
testified about his not having all the patients for whom he prescribed 
controlled substances sign controlled substance agreements. According 
to MT DI, Applicant ``didn't really have an explanation to it . . . he 
didn't explain why he had some do it and not all.'' Id. at 158. 
According to GS, Applicant ``[s]ometimes . . . diverted away from the 
question and didn't really answer it'' and she concluded that he did 
not provide a ``full and complete explanation.'' Id. at 252. Applicant 
testified that he did not have the ``same recollection'' as the DEA 
investigators on the matter. Id. at 397. He testified that his desire 
for the three-hour meeting with DEA investigators was to ``get . . . 
[his] DEA back.'' Id. He testified that he questioned why the 
investigators were asking him to justify what he did when he had 
already done that, unsuccessfully, before the NJMB and, successfully, 
in Montana. Id. Applicant testified that he was not trying to justify 
his controlled substance agreement actions ``because . . . [he] made 
mistakes'' and he ``recognize[d] that . . . [he] made mistakes and 
there's things . . . [he] need[s] to learn, but that was what . . . 
[he] was trying to explain to . . . [the DEA investigators].'' Id. at 
397-98; see also id. at 400-01 (Applicant's response when the ALJ asked 
him for the explanation he gave the DEA investigators for giving the 
``pain contract to some patients but not all,'' including that he ``did 
speak to each of . . . [his] patients verbally about things and talked 
with them and documented, but not full documentation. And that is the 
problem that I take full ownership in.''). When Government counsel 
asked him to ``explain why . . . in . . . [his] opinion . . . [the DEA 
investigators'] testimony on . . . [Applicant's response about 
controlled substance agreements] is incorrect as to the response you 
provided,'' Applicant testified that he ``can't explain why they came 
away with that opinion unless the answer to the things . . . [he] was 
talking about didn't resonate with what they wanted to hear.'' Id. at 
399-400.
    The testimonies of the DEA investigators and Applicant also 
addressed whether Applicant's responses were ``truthful and candid.'' 
MT DI testified that Applicant did not give her a ``full and complete 
explanation'' of why he did ``nothing,'' and kept doing nothing, with 
the results of the urinalysis tests he employed, such as positive urine 
drug screens for illegal drugs and negative urine drug screens for 
controlled substances he had previously prescribed. Id. at 160-61; see 
also id. at 162. GS testified that she and MT DI asked Applicant 
``repeatedly why didn't he take more proactive steps to talk to his 
patients and find out where those drugs were going'' and ``he really 
didn't answer us.'' Id. at 256; see also id. at 257 (GS testimony that 
``[w]e were trying to get why would you continue to practice with all 
of these red flags right in front of you . . . but we just didn't 
understand why a physician would prescribe these drugs the way he 
did''). Applicant, on the other hand, testified that his responses to 
the DEA investigators' questions were ``truthful and candid.'' Id. at 
403.
    Given that the facts pertaining to Applicant's prescribing of 
controlled substances with neither federal nor state authority are 
uncontroverted, it is not necessary that I find any facts pertaining 
to, nor adjudicate, the OSC's candor allegation, and I decline to do 
so.
    Based on the uncontroverted, substantial record evidence that 
Applicant admitted to issuing, and did issue, eleven controlled 
substance prescriptions when he had neither federal nor state authority 
to do so, I find that the Government presented a prima facie case on 
that OSC allegation.

[[Page 30274]]

III. Discussion

A. The Controlled Substances Act and the Public Interest Factors

    Pursuant to the Controlled Substances Act (hereinafter, CSA), 
``[t]he Attorney General shall register practitioners . . . to dispense 
. . . controlled substances . . . if the applicant is authorized to 
dispense . . . controlled substances under the laws of the State in 
which he practices.'' 21 U.S.C. 823(f). The CSA further provides that 
an application for a practitioner's registration may be denied upon a 
determination that ``the issuance of such registration . . . would be 
inconsistent with the public interest.'' Id. In making the public 
interest determination, the CSA requires consideration of the following 
factors:
    (1) The recommendation of the appropriate State licensing board or 
professional disciplinary authority.
    (2) The applicant's experience in dispensing . . . 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.

Id.
    These factors are considered in the disjunctive. Robert A. Leslie, 
M.D., 68 FR 15227, 15230 (2003). I ``may rely on any one or a 
combination of factors and may give each factor the weight [I] deem[ ] 
appropriate in determining whether . . . an application for 
registration [should be] denied.'' Id. Moreover, while I am required to 
consider each factor, I `` `need not make explicit findings as to each 
one,' '' and I `` `can give each factor the weight . . . [I] determine[ 
] is appropriate.' '' Jones Total Health Care Pharmacy, LLC v. Drug 
Enf't Admin., 881 F.3d 823, 830 (11th Cir. 2018) (quoting Akhtar-Zaidi 
v. Drug Enf't Admin., 841 F.3d 707, 711 (6th Cir. 2016)); see also 
MacKay v. Drug Enf't Admin., 664 F.3d 808, 816 (10th Cir. 2011) 
(quoting Volkman v. Drug Enf't Admin., 567 F.3d 215, 222 (6th Cir. 
2009) (quoting Hoxie v. Drug Enf't Admin., 419 F.3d 477, 482 (6th Cir. 
2005))). In other words, the public interest determination ``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 the 
Government and how many favor the registrant. Rather, it is an inquiry 
which focuses on protecting the public interest; what matters is the 
seriousness of the registrant's misconduct.'' Peter A. Ahles, M.D., 71 
FR 50097, 50098-99 (2006).
    According to the regulations, ``A prescription for a controlled 
substance may be issued only by an individual practitioner who is (1) 
Authorized to prescribe controlled substances by the jurisdiction in 
which he is licensed to practice his profession and (2) Either 
registered or exempted from registration . . . .'' 21 CFR 1306.03(a). I 
recently reiterated what the Agency has consistently stated: The CSA 
and its regulations are clear that a registrant must possess the 
requisite authority under both federal and state law to prescribe a 
controlled substance lawfully.\25\ Tamika Mayo, M.D., 86 FR 69681, 
69684 (2021); see also, e.g., Richard J. Settles, D.O., 81 FR 64940, 
64946 (2016); Hoi Y. Kam, M.D., 78 FR 62694, 62697-98 (2013); Anthony 
E. Wicks, M.D., 78 FR 62676, 62678 (2013); Belinda R. Mori, N.P., 78 FR 
36582, 36588 (2013); Bob's Pharmacy and Diabetic Supplies, 74 FR 19599, 
19601 (2009); Jerry Neil Rand, M.D., 61 FR 28895, 28897 (1996).
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    \25\ Given the clear requirements of the CSA, 21 U.S.C. 802(10) 
and (21), and its regulations, 21 CFR 1306.03, that a practitioner 
must have the requisite authority under both federal and state law 
to prescribe a controlled substance, I need not, and I decline to, 
address the OSC's allegations that Applicant violated 21 U.S.C. 
822(a)(2), 841(a)(1), and 843(a)(2).
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    In this matter, as already discussed, the OSC calls for my 
adjudication of Applicant's DEA registration application No. W18015986C 
based on the charge that Applicant submitted a materially false 
narrative response to its second Liability question. OSC, at 4-5; 
supra, section II.C., section II.E. Material falsification, of course, 
is a basis for revocation or suspension of a DEA registration. 21 
U.S.C. 824(a)(1).
    Prior Agency decisions have addressed whether it is appropriate to 
consider a provision of 21 U.S.C. 824(a) when determining whether or 
not to grant a practitioner registration application. I recently agreed 
with the conclusions of Agency decisions over the last forty-five years 
that it is. Lisa M. Jones, N.P., 86 FR 52196, 52202 (2021); see also, 
e.g., Robert Wayne Locklear, 86 FR 33738 (2021) (collecting Agency 
decisions). Those decisions have offered multiple bases and analyses 
for that conclusion. 86 FR at 33744-45. I again agree with my 
predecessors' conclusions that a provision of 21 U.S.C. 824 may be the 
basis for the denial of a practitioner registration application, and 
that the 21 U.S.C. 823 public interest factors remain relevant to the 
adjudication of a practitioner registration application when a 
provision of 21 U.S.C. 824 is involved. Id.
    The Government has the burden of proof in this proceeding. 21 CFR 
1301.44. In this matter, while I have considered all of the public 
interest factors, the Government's evidence in support of its prima 
facie case is confined to Factors Two and Four.\26\ The Government's 
Proposed Findings of Fact, Conclusions of Law, and Argument dated July 
22, 2020 (hereinafter, Govt Posthearing), at 31; 21 U.S.C. 823.
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    \26\ As to Factor One, neither party posits that the Montana 
state licensing board has recommended for or against the issuance of 
a DEA registration to Applicant. Further, I find that the final New 
Jersey Consent Order states that the ``New Jersey State Board of 
Medical Examiners takes no position with respect to any application 
by . . . [Applicant] for DEA credentials/privileges in any other 
state.'' GX 4, at 2.
     As to Factor Three, there is no evidence in the record that 
Applicant has a ``conviction record under Federal or State laws 
relating to the manufacture, distribution, or dispensing of 
controlled substances.'' 21 U.S.C. 823(f)(3). However, as prior 
Agency decisions have noted, there are a number of reasons why a 
person who has engaged in criminal misconduct may never have been 
convicted of an offense under this factor, let alone prosecuted for 
one. Dewey C. MacKay, M.D., 75 FR 49956, 49973 (2010), pet. for rev. 
denied, MacKay v. Drug Enf't Admin., 664 F.3d 808 (10th Cir. 2011). 
Those Agency decisions have therefore concluded that ``the absence 
of such a conviction is of considerably less consequence in the 
public interest inquiry'' and is therefore not dispositive. Id. I 
agree.
    The Government does not argue that its case includes an 
allegation cognizable under Factor Five. Govt Posthearing, at 31.
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B. Allegation That Applicant Materially Falsified Registration 
Application No. W18015986C

    Regarding 21 U.S.C. 824(a)(1), I recently decided that the elements 
of a material falsification according to the Supreme Court's decision 
in Kungys v. United States, 485 U.S. 759 (1988), and its recent 
progeny, are consistent with the CSA. Lisa M. Jones, N.P., 86 FR at 
52202; see also, e.g., Frank Joseph Stirlacci, M.D., 85 FR 45229, 45238 
(2020). According to that Supreme Court precedent, ``material'' means 
having ``a natural tendency to influence, or was capable of 
influencing, the decision of the decisionmaking body to which it was 
addressed.'' Frank Joseph Stirlacci, M.D., 85 FR at 45238 (citing 
Kungys, 485 U.S. at 770).
    The Government argues that, although Applicant correctly responded 
``yes'' to the second Liability question, his narrative response 
omitted specific reference to his DEA registration, focusing, instead, 
on why he thought the NJMB's conclusions about his medical practice 
were wrong. Govt Posthearing, at 27-31. In other words,

[[Page 30275]]

the Government argues that Applicant's response to the follow-up 
engendered due to his ``yes'' response to the second Liability question 
is materially false because it does not disclose responsive information 
pertaining to his DEA registration. E.g., id. at 5-7. Consequently, I 
now address whether Applicant's DEA registration application No. 
W18015986C is materially false according to the Kungys definition of 
``material.''
    As already discussed, I find uncontroverted, substantial, clear, 
unequivocal, and convincing record evidence that Applicant answered 
``yes'' to the second Liability question on DEA registration 
application No. W18015986C. Supra, section II.E. In addition, as 
already discussed, I find uncontroverted, substantial, clear, 
unequivocal, and convincing record evidence that Applicant's ``yes'' 
answers to Liability questions two and three were true. Id. As already 
discussed, I find uncontroverted, substantial, clear, unequivocal, and 
convincing record evidence that NJ DI completed and presented to 
Applicant the Form DEA-104 that Applicant signed on May 20, 2015. Id. 
From the record evidence that the Government submitted, I also find 
uncontroverted, substantial, clear, unequivocal, and convincing record 
evidence that both MT DI and GS knew, or had reason to know, that 
Applicant had surrendered his DEA registration based on Applicant's 
affirmative response to the second Liability question on DEA 
registration application No. W18015986C. Id.
    The found facts of this adjudication are unique and not likely ever 
to recur. Based on those facts, there are many reasons why Applicant's 
narrative follow-up to his ``yes'' response to the second Liability 
question did not have a ``natural tendency to influence'' and was not 
``capable of influencing'' the Agency's decision regarding Applicant's 
DEA registration application No. W18015986C. For example, Applicant 
accurately responded in the affirmative to the second Liability 
question on DEA registration application No. W18015986C and responded 
with the correct ``incident date'' and the correct ``incident 
location'' in the narrative. Further, DEA investigators filled in a 
Form DEA-104, presented it to Applicant, explained it to Applicant, 
told Applicant why they were offering him the opportunity to sign it 
and surrender his DEA registration, and obtained from Applicant his 
signature on it and the surrender of his DEA registration No. 
FT2321797.\27\ Id. All of this accurate information about Applicant's 
DEA registration surrender (for cause) was available to the assigned 
DEA investigator.
---------------------------------------------------------------------------

    \27\ Given the unique found facts in this matter, my findings 
and conclusions do not impact prior Agency decisions stating, for 
example, that misinterpretation of the application does not relieve 
an applicant of the responsibility to read the question carefully 
and answer all parts of it honestly, or that negligence and 
carelessness in completing an application could be a sufficient 
reason to revoke a registration. See, e.g., Martha Hernandez, M.D., 
62 FR 61145, 61147 (1997) (finding that respondent submitted 
material falsifications that are grounds for revocation, but 
concluding that revocation is not an appropriate sanction in light 
of the facts and circumstances).
---------------------------------------------------------------------------

    Accordingly, on the unique and unlikely ever to recur record 
evidence before me, I conclude that the narrative responses regarding 
``incident nature'' and ``incident result'' Applicant provided for the 
second Liability question on his DEA registration application No. 
W18015986C were not ``predictably capable of affecting, that is, had a 
natural tendency to affect, the official decision'' of DEA.

C. Factors Two and/or Four--The Applicant's Experience in Dispensing 
Controlled Substances and Compliance With Applicable Laws Related to 
Controlled Substances; Allegation That Applicant Issued Controlled 
Substance Prescriptions Without Federal and State Authority

    At the core of the CSA is the principle that having the requisite 
federal and state authority is essential to the lawful issuance of a 
controlled substance prescription. See Gonzales v. Raich, 545 U.S. 13-
14, 27 (2005). The adjudication of the OSC allegation that Applicant 
issued controlled substance prescriptions without federal or state 
authority is factually and legally clear. As already discussed, 
Applicant admitted to issuing eleven controlled substance prescriptions 
when he did not have the requisite federal and state authority. Supra, 
section II.F. Further, it is clear that, for a practitioner to issue a 
controlled substance prescription lawfully, he must have both federal 
and state authority to do so. 21 CFR 1306.03; supra, section III.A. 
Accordingly, I conclude that there is uncontroverted, substantial 
record evidence that Applicant unlawfully issued eleven controlled 
substance prescriptions, as he admitted. Supra, section II.F, section 
III.A; see also Appl Exceptions, at 4-6. The founded violations of 
unlawfully prescribing controlled substances eleven times implicate 
Factors Two and Four. 21 U.S.C. 823(f)(2) and (4).
    Applicant's eleven unlawful controlled substance prescriptions 
violate a core principle of the CSA and constitute egregious 
misconduct. Supra. Accordingly, I conclude that it is appropriate to 
sanction Applicant for these violations.
Summary of Factors Two and Four
    As already discussed, Applicant admitted to issuing eleven 
controlled substance prescriptions when had neither federal nor state 
authority to do so. Supra, section II.F, section III.A; see also Appl 
Exceptions, at 4-6. Accordingly, I conclude that Applicant engaged in 
egregious misconduct and that the denial of DEA registration 
application No. W18015986C is, thus, appropriate. 21 U.S.C. 823(f)(2) 
and (4); see Wesley Pope, 82 FR 14944, 14985 (2017).

IV. Sanction

    Where, as here, the Government has met its prima facie burden of 
showing that my issuance of a DEA registration to Applicant would be 
inconsistent with the public interest due to his issuance of eleven 
controlled substance prescriptions when he had neither federal nor 
state authority to do so, the burden shifts to Applicant to show why he 
can be entrusted with a DEA registration. Garrett Howard Smith, M.D., 
83 FR 18882, 18910 (2018) (collecting cases). Moreover, as past 
performance is the best predictor of future performance, DEA 
Administrators have required that an applicant who has committed acts 
inconsistent with the public interest must accept responsibility for 
those acts and demonstrate that he will not commit violations in the 
future. Id. An applicant's acceptance of responsibility must be 
unequivocal. Id. In addition, an applicant's candor during the 
investigation and hearing has been an important factor in determining 
acceptance of responsibility and the appropriate sanction. Id. 
(collecting cases). In addition, DEA Administrators have found that the 
egregiousness and extent of the misconduct are significant factors in 
determining the appropriate sanction. Id. DEA Administrators have also 
considered the need to deter similar acts by the applicant and by the 
community of registrants and potential registrants. Id.
    Regarding his issuing eleven controlled substance prescriptions 
when he had neither federal nor state authority to do so, Applicant was 
asked ``with respect to the prescriptions that you wrote, the alleged 
prescriptions, have you acknowledged writing after your DEA 
registration was surrendered? Do you accept responsibility for that?'' 
Tr. 528. Applicant responded, ``Yes. I'm

[[Page 30276]]

embarrassed by some of my errors, and I take full responsibility. I 
regret these.'' Id. The meaning of this portion of Applicant's 
testimony is far from clear. First, it is impossible to determine to 
which question Applicant was responding ``yes'' given that the 
transcript shows that he was asked two different questions. Id. Second, 
Applicant stated that he is ``embarrassed'' by ``some'' of his 
``errors.'' Id. Again, it is impossible to determine which of 
Applicant's ``errors'' embarrass him because Applicant neither 
explained what he considers his ``errors'' to be nor stated which 
subset of his ``errors'' embarrass him. Id. Third, Applicant's 
testimony is not clear about what the subject of his taking ``full 
responsibility'' is.
    Further, in the context of his issuing controlled substance 
prescriptions with neither federal nor state authority, Applicant's 
attempt to minimize his wrongdoing by distinguishing between 
``narcotics'' and the Schedule IV and Schedule V prescriptions he 
issued is troubling because the distinction is legally irrelevant. Tr. 
390 (Applicant's testimony that ``it doesn't seem unreasonable'' for 
him to have been surprised that he had written ``a [B]elviq or lower'' 
when he had been thinking about ``narcotics''). The law does not 
distinguish among controlled substances' schedules. It is unlawful to 
issue a prescription for any controlled substance without the requisite 
federal and state authority. 21 CFR 1306.03. In sum, the record 
evidence does not support my concluding that Applicant unequivocally 
accepts responsibility for issuing eleven controlled substance 
prescriptions when he did not have federal and state authority to do 
so. See also supra, section II.D. None of Applicant's record evidence, 
including his testimony, convinces me that I can entrust him with a DEA 
registration by granting DEA registration application No. W18015986C.
    Also during his testimony, Applicant's counsel asked him ``with 
respect to the New Jersey consent order of temporary suspension'' 
whether he ``accept[s] that . . . [he] is bound by that suspension.'' 
Tr. 528. Applicant's answer was ``[y]es, absolutely. I was concerned by 
. . . comments [of Government counsel]. I accept responsibility; I'm an 
adult, and I want to do better.'' Id. Again, I am not able to conclude 
from this testimony that Applicant accepts unequivocal responsibility 
and, if he does, for what. I also note that Applicant ``denie[d] any 
and all wrongdoing'' in the final Consent Order, thus indicating that 
he did not accept unequivocal responsibility for his NJMB-founded 
controlled substance-related violations. GX 4, at 2; see also supra, 
section II.D.
    In sum, Applicant did not unequivocally accept responsibility and 
has not convinced me that he can be entrusted with the registration he 
applied for in DEA registration application No. W18015986C. See also 
infra.
    The interests of specific and general deterrence weigh in favor of 
denial of Applicant's DEA registration application No. W18015986C. 
Applicant issued eleven controlled substance prescriptions when he had 
neither federal nor state authority to do so, a violation at the core 
of the CSA. While Applicant is to be recognized for taking controlled 
substance-related and documentation/recordkeeping-related courses, his 
testimony in this proceeding has not convinced me that his future 
controlled substance prescribing, documentation, and recordkeeping will 
comply with legal requirements.
    Further, given the egregious nature of Applicant's violations, 
including that he unlawfully wrote eleven controlled substance 
prescriptions for six different Schedule IV and Schedule V controlled 
substances, a sanction less than denial of Applicant's DEA registration 
application No. W18015986C would send a message to the current and 
prospective registrant community that compliance with the law, 
including compliance with core controlled-substance legal principles, 
is not a condition precedent to receiving and maintaining a DEA 
registration.
    Accordingly, I shall order the sanction the Government requested, 
as contained in the Order below.

Order

    Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 
U.S.C. 823(f), I hereby deny DEA registration application No. 
W18015986C submitted by Eric David Thomas, M.D. I further hereby deny 
any other pending application(s) of Eric David Thomas, M.D., for 
registration in Montana. This Order is effective June 17, 2022.

Anne Milgram,
Administrator.
[FR Doc. 2022-10591 Filed 5-17-22; 8:45 am]
BILLING CODE 4410-09-P