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1The RD proposes, if I were considering granting 

Applicant’s application, that I limit Applicant’s 

authority to Schedule V. RD, at 142 n.35. 

estimated for an average respondent to 

respond: An estimated 2,000 

respondents will provide information to 

complete this form once annually, and 

it will take approximately 5 minutes to 

complete the form. 

(6) An estimate of the total public 

burden (in hours) associated with the 

collection: The estimated annual public 

burden associated with this collection is 

167 hours, which is equal to 2,000 (total 

respondents) * 1 (# of response per 

respondent) * .833333 (5 minutes or the 

time taken to prepare each response). 

If additional information is required 

contact: Melody Braswell, Department 

Clearance Officer, United States 

Department of Justice, Justice 

Management Division, Policy and 

Planning Staff, Two Constitution 

Square, 145 N Street NE, Mail Stop 3.E– 

405A, Washington, DC 20530. 

Dated: May 13, 2022. 

Melody Braswell, 

Department Clearance Officer for PRA, U.S. 

Department of Justice. 

[FR Doc. 2022–10655 Filed 5–17–22; 8:45 am] 

BILLING CODE 4410–FY–P 

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). 

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, 


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2This document is Government Exhibit 

(hereinafter, GX) 3, admitted without objection. Tr. 

86–88. 

3This document is GX 4, admitted without 

objection. Tr. 88–89. 

4This document is GX 2, admitted without 

objection. Tr. 36–38. 

5This document is GX 1a, admitted without 

objection. Tr. 98–99. 

6This document is GX 1b, admitted without 

objection. Tr. 94–95. 

7This document is GX 1c, admitted without 

objection. Tr. 96–97. 

8This document is GX 1d, admitted without 

objection. Tr. 97–98. 

9The controlled substance prescriptions 

referenced in Stipulations 13 through 23 are 

Continued 

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

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. 

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

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. 

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. 

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. 

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. 

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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compiled in GX 8. Tr. 130–32. GX 8 was admitted 

without objection. Id. at 132. 

10NJ 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. 

11The italicized material in these two quotes is 

handwritten above the noted text of GX 2. 

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. 

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 


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12Three of the Government’s Exhibits, GX 1, GX 

12, and GX 13, have subparts. 

13MT 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. 

14MT 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. 

15Similarly, 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. 

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. 

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. 

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. 

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 


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16The 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. 

17The 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. 

18Applicant’s handwriting exemplar is GX 9. GX 

9 was admitted without objection. Tr. 271. 

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. 

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 longterm 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. 

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 


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19The 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. 

20Applicant 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. 

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

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 nonnarcotic 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 


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21The 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. 

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. 

23While 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. 

University School of Medicine), 12b 

(Certificate of Completion of ‘‘OfficeBased 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. 

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. 

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. 

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. 


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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. 

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 lowlevel 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. 

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. 


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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). 

26As 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. 

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). 

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. 

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, 


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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). 

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. 

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 


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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 controlledsubstance 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 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 21–19] 

Michael T. Harris, M.D.; Decision and 

Order 

On May 20, 2021, a former Assistant 

Administrator, Diversion Control 

Division, Drug Enforcement 

Administration (hereinafter, DEA or 

Government) issued an Order to Show 

Cause (hereinafter, OSC), seeking to 

revoke the DEA Certificate of 

Registration, Control No. FH1510709, of 

Michael T. Harris, M.D. (hereinafter, 

Respondent) and deny any pending 

applications for renewal or modification 

of such registration, or for additional 

registrations, pursuant to 21 U.S.C. 

824(a)(4). OSC, at 1. The Government 

alleges that Respondent’s continued 

registration is inconsistent with the 

public interest, as defined in 21 U.S.C. 

823(f). Id. 

A hearing was held before an 

Administrative Law Judge (hereinafter, 

ALJ) on October 12, 2021. The ALJ 

issued Recommended Rulings, Findings 

of Fact, Conclusions of Law, and 

Decision of the Administrative Law 

Judge (hereinafter, Recommended 

Decision or RD), which recommended 

that I revoke Respondent’s registration 

and deny his pending application for 

renewal. RD, at 39. Respondent filed 

Exceptions to the RD on January 7, 

2021, and the Government filed its 

Response on January 28, 2022. 

I. Findings of Fact 

A. Witness Credibility 

The Government presented its case 

through the testimony of two witnesses, 

a DEA Diversion Investigator 

(hereinafter, DI), Tr. 16–58, 200–01, and 

Dr. L, a former colleague of Respondent, 

Tr. 60–80. The ALJ gave the DI and Dr. 

L’s testimonies full weight and credit. 

RD, at 7, 9. I adopt her summary of their 

testimonies and credibility 

determinations. Id. at 5–9. 

Respondent presented his case 

through two witnesses, Dr. R., who 

medically monitored Respondent’s drug 

rehabilitation, Tr. 80–144, and 

Respondent, Tr. 144–190. The ALJ gave 

little weight to Dr. R’s testimony— 

finding that Dr. R was a ‘‘combative and, 

at times, condescending witness,’’ who 

had a vested interest in Respondent 

retaining his DEA registration. RD, at 

13–14. I agree with the ALJ’s findings 

and adopt her credibility determination 

for Dr. R’s testimony. Id. 

I also agree with the ALJ’s credibility 

findings regarding Respondent’s 


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