[Federal Register Volume 79, Number 133 (Friday, July 11, 2014)]
[Notices]
[Pages 40145-40160]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-16162]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 11-72]


Moore Clinical Trials, L.L.C.; Decision and Order

    On August 8, 2011, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration, issued an Order to 
Show Cause to Moore Clinical Trials, L.L.C. (Respondent), of North 
Little Rock, Arkansas. The Show Cause Order proposed the denial of 
Respondent's application for a DEA Certificate of Registration as a 
researcher, on the ground that ``its registration would be inconsistent 
with the public interest.'' ALJ Ex. 1, at 1 (citing 21 U.S.C. 823(f)).
    The Show Cause Order alleged that on March 15, 2011, Ms. Greta B. 
Moore submitted on Respondent's behalf, an ``application for a DEA 
research registration for [s]chedule II controlled substances.'' Id. 
The Show Cause Order alleged that while Ms. Moore would be the primary 
person responsible for ordering and storing controlled substances, she 
``has no prior experience with handling controlled substances.'' Id. 
(citing 21 U.S.C. 823(f)(2)). The Show Cause Order then alleged that 
``Ms. Moore initially informed DEA investigators that she had 
experience researching with controlled substances but then admitted 
this assertion was not true.'' Id. (citing 21 U.S.C. 823(f)(5)).
    Next, the Show Cause Order alleged that ``[t]he only DEA registered 
physician that plans to work at [Respondent] will have very limited 
hours and contact with'' it. Id. at 2. The Show Cause Order further 
alleged that ``[i]n 2006, the Arkansas State Medical Board suspended 
this physician's medical license because . . . he . . . pre-signed 
controlled substance

[[Page 40146]]

prescriptions, which were issued by his staff,'' and that ``[i]n 2008, 
[he] was convicted of one count of Medicare fraud'' in federal district 
court and subsequently ``excluded . . . from participating in the 
Medicare programs as required by 42 U.S.C. 1320a-7(a).'' Id. (citing 21 
U.S.C. 823(f)(5)).
    Finally, the Show Cause Order alleged that the State of Arkansas 
``has not granted [Respondent's] application for a research license,'' 
and that Respondent ``is currently without authority to handle 
controlled substances in the State . . . in which [it] has applied for 
a DEA . . . registration.'' Id. The Order thus alleged that ``DEA must 
deny [its] application based upon its lack of authority to handle 
controlled substances in the State of Arkansas.'' Id. (citing 21 U.S.C. 
823(f)(1)).
    On August 26, 2011, Respondent, through its owner Ms. Moore, 
requested a hearing on the allegations, ALJ Ex. 2, and the matter was 
placed on the docket of the Office of Administrative Law Judges (ALJ). 
Thereafter, the Government moved for summary disposition on the ground 
that Respondent did not possess the requisite Arkansas researcher's 
license and therefore could not be registered pursuant to 21 U.S.C. 
823(f); the Government's motion was supported by a letter from the 
Deputy General Counsel of the Arkansas Department of Health stating 
that Respondent's application for a state license had not been granted. 
ALJ Ex. 3.
    Respondent opposed the Government's motion, contending that it 
possesses a temporary Arkansas license authorizing it to handle 
controlled substances.\1\ ALJ Ex. 4, at 4. The Government then filed a 
reply to the Respondent's opposition and included a further letter from 
the aforementioned official, which again stated that Respondent did not 
possess a valid state license but had been issued a temporary state 
registration number in order to allow it to complete its DEA 
application. ALJ Ex. 4, at 4-5. Thereafter, the ALJ found that there 
was no dispute over the material fact ``that Respondent is presently 
without state authority to handle controlled substances in Arkansas.'' 
Id. at 8-9. The ALJ thus granted the Government's motion and forwarded 
the then-existing record to me for final agency action. Id. at 12.
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    \1\ Notably, in forwarding the record to this Office, the ALJ 
failed to include the Respondent's opposition to the Government's 
motion. In addition, numerous other filings were not initially 
forwarded to this Office, including the parties' pre-hearing 
statements, motions and oppositions related to various rejected 
exhibits, as well as the ALJ's order excluding these exhibits. 
Accordingly, I ordered the ALJ to forward these documents to me. 
Given that proper review of the record requires that the entire 
record be forwarded to this office for review, these filings should 
have been designated as ALJ Exhibits and forwarded as part of the 
record.
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    On April 16, 2012, while the matter was still pending before this 
Office, the Government filed a motion to remand the case, noting that 
on March 12, 2012, Respondent obtained a state controlled-substance 
registration. ALJ Ex. 6, at 1. The Government observed, however, that 
it had raised ``additional allegations under 21 U.S.C. 823(f) to deny 
[Respondent's] application'' and that an evidentiary hearing was 
required to litigate them. Gov. Mot. to Remand, at 1. In opposition, 
Respondent contended that a hearing was no longer required because the 
Government had ``abandoned'' its other claims by seeking summary 
disposition and that ``[t]he re-litigation of these issues following 
the [ALJ's] Order on the Government's Summary Judgment Motion would be 
akin to res judicata.'' Response of Moore Clinical Trials LLC To The 
Government's Motion To Remand, at 1-2. On June 4, 2012, I found neither 
of Respondent's contentions persuasive and granted the Government's 
motion to remand the matter to the ALJ ``for further proceedings.'' Id. 
at 2-3.
    Thereafter, on June 22, 2012, the Government filed a second motion 
for summary disposition. ALJ Ex. 7. Therein, the Government asserted 
that while Respondent ``had planned to hire a DEA registered physician, 
Brian T. Nichol, M.D., . . . to administer and dispense the controlled 
substances to the research subjects,'' it was its ``understanding that 
[Respondent] now would not be hiring Dr. Nichol.'' Id. at 2. The 
Government further argued that under Arkansas law, Respondent ``cannot 
operate until and unless there is an authorized licensed physician in 
the State . . . who will be hired by [it] to administer and dispense 
the controlled substance that [it] seeks to use in its research 
facility.'' Id. at 3. The Government thus contended that because 
Respondent ``does not have such a person who will serve in this 
capacity . . . [its] DEA application should be summarily denied.'' Id. 
The Government did not, however, offer any evidence to support the 
factual premise of its motion.
    Respondent opposed the motion (although here again, the ALJ failed 
to forward its filing), contending that it had entered into a contract 
with Dr. Nichol (more precisely, his entity, Brinch Clinical Research), 
to provide a licensed physician to administer or dispense the 
controlled substances to the research subjects. ALJ Ex. 8 (citing 
Respondent's Response, at 1-2). In contrast to the Government, 
Respondent provide evidence to support is contention, specifically, a 
copy of its contract with Dr. Nichol's entity. Id. at 2.
    On July 6, 2012, the ALJ denied the Government's motion, finding 
that ``there is a genuine dispute of material fact regarding Dr. 
Nichol's employment with [Respondent] as the physician assigned to this 
research project.'' ALJ Ex. 8, at 2. However, ``because the Government 
asserts additional material factual allegations regarding Respondent's 
application for a DEA registration, allegations which the Respondent 
vigorously disputes,'' the ALJ set the matter for hearing. Id.
    Following additional pre-hearing procedures, on September 19-21, 
2012, the ALJ conducted a hearing in Little Rock, Arkansas. Recommended 
Rulings, Findings of Fact, Conclusions of Law, and Decision of the 
Administrative Law Judge (hereinafter, Recommended Decision or R.D.), 
at 5. At the hearing, both parties called witnesses to testify and 
submitted various documents for the record. Following the hearing, both 
parties filed briefs containing their proposed findings of fact, 
conclusions of law, and arguments.\2\
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    \2\ Each party's brief is cited as Gov. Br. or Resp. Br.
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    On November 30, 2012, the ALJ issued her Recommended Decision. 
Therein, the ALJ reviewed the evidence with respect to the five public 
interest factors. See R.D. at 25-35. With respect to factor one--the 
recommendation of the appropriate state licensing board--the ALJ found 
that the State of Arkansas ``has granted the Respondent a temporary 
controlled substance registration.'' R.D. at 26. The ALJ thus concluded 
that while this factor is ``not dispositive,'' because ``[t]he ultimate 
responsibility to determine whether a registration is consistent with 
the public interest has been delegated exclusively to the DEA'' and not 
to state officials, the ALJ found that ``Respondent meets that 
requirement for gaining a DEA registration.'' Id. (citing Edmund Chein, 
M.D., 72 FR 6580, 6590 (2007), pet. for rev. denied, Chein v. DEA, 533 
F.3d 828 (D.C. Cir. 2008)).
    Likewise, with respect to factor three--Respondent's record of 
convictions for offenses relating to the manufacture, distribution, and 
dispensing of controlled substances--the ALJ found that there was no 
evidence that Respondent has been convicted of such an offense. Id. at 
27. However, the ALJ further noted that ``[w]hile this factor may 
support the

[[Page 40147]]

granting of Respondent's application . . . [i]t is not dispositive [of] 
the public interest determination.'' Id. at 27-28 (citing Morris W. 
Cochran, 77 FR 17505, 17517 (2012)).
    As for factor two--the applicant's experience in dispensing or 
conducting research with respect to controlled substances--the ALJ 
noted that under Agency precedent, both an applicant's lack of relevant 
experience and an applicant's having ``previously poorly handled 
controlled substances'' provide grounds to deny an application. R.D. at 
26 (citing cases). The ALJ then found that ``the parties do not dispute 
that Ms. Moore lacks experience in handling controlled substances in a 
research project'' and that ``[s]he freely admitted that she is 
unfamiliar with the documentary requirements for the maintenance of 
inventories and other accountability purposes.'' R.D. at 27. The ALJ 
thus found that ``this lack of experience weighs against granting her a 
DEA registration to handle controlled substances.'' Id.
    However, the ALJ then noted that ``Ms. Moore has extensive clinical 
research experience,'' including ``experience maintaining documents 
necessary for such research accountability.'' Id. While finding that 
``the record contains no evidence of her success,'' the ALJ found ``the 
fact that AstraZeneca granted her a research project indicative of her 
documented experience at least to their satisfaction for purposes of 
this study.'' Id. And while finding that ``Ms. Moore has struggled to 
create a form document that will capture the facts necessary for an 
accountability audit,'' the ALJ then found that ``the record amply 
demonstrates her willingness to become compliant.'' Id. The ALJ then 
offered the conclusion, which she herself deemed ``speculative,'' that 
``[w]ith training, [Ms. Moore] should be able to convert her research-
required recordkeeping system into one compliant with DEA 
requirements.'' Id. While the ALJ ``recommend[ed] that Ms. Moore take a 
course in the handling of controlled substances by researchers,'' she 
did not make an explicit finding as to whether this factor supported 
either the granting or denial of Respondent's application. Id.
    Turning to factor four--the applicant's compliance with applicable 
laws related to controlled substances--the ALJ noted that registrants 
who dispense controlled substances must comply with a number of 
statutes and regulations, including various registration, recordkeeping 
and security requirements. Id. at 28 (citations omitted). Moreover, the 
ALJ found that ``Ms. Moore signed for a shipment of [a] controlled 
substance when she was not registered to do so,'' and that ``[s]uch 
handling of controlled substances without a registration is a violation 
of DEA statutory and regulatory provisions.'' Id. at 29 (citing 21 CFR 
1301.13(a)).
    The ALJ also found that ``the documents kept by Dr. Nichol,'' who 
was supervising the two clinical trials on behalf of Respondent, ``were 
deficient'' and that the order forms for Schedule II controlled 
substances (DEA-222) ``were lacking.'' Id. The ALJ also found that 
``Dr. Nichol transported controlled substances to the Respondent's 
location,'' where he was not registered to dispense them. Id. (citing 
21 U.S.C. 822(e)). However, the ALJ declined ``to impute Dr. Nichol's 
errors to the Respondent,'' reasoning that while Nichol was an 
independent contractor, he did not act as Respondent's agent because 
``Respondent's business is not meant to exercise control over the 
doctor's medical judgment nor is the Respondent meant to be primarily 
responsible for the research and recordkeeping.'' Id. at 31. In support 
of her conclusion, the ALJ further explained that ``Respondent does not 
even pay Dr. Nichol for his service in conducting research at 
Respondent's place of business, but[ ] rather[,] Dr. Nichol's payment 
is a `pass-through' system of payment in which the Respondent pays 
[him] once [it] receives funds from the Sponsoring Organization.'' Id.
    The ALJ thus reasoned that Dr. Nichol is not Respondent's agent 
``because the Respondent does not exercise any control over Dr. 
Nichol's work; rather, the Respondent only offers Dr. Nichol a facility 
in which to conduct research.'' Id. at 32. Based on this conclusion, 
the ALJ declined to impute to Respondent what she characterized as 
``the alleged wrongdoing of Dr. Nichol regarding the transporting and 
dispensing of the controlled substances at Respondent's location.'' Id.
    ``Although [she did] not attribute the past wrongdoings of Dr. 
Nichol to the Respondent, [the ALJ] recognize[d] the Respondent's 
responsibility in needing to maintain proper records.'' Id. (citing 
United States v. Clinical Leasing Service, Inc., 759 F. Supp. 310, 312 
(E.D. La. 1990)). However, the ALJ then explained that ``there has been 
no evidence placed in the record of Respondent's recordkeeping'' and 
that the ``[t]he records that were produced were Dr. Nichol's 
records.'' Id. at 33. Thus, while the ALJ found that the evidence is 
clear that Nichol's records did not comply with the Controlled 
Substances Act or DEA regulations, ``the shortcomings of these records 
are attributable to him'' and not Respondent. Id. The ALJ thus reasoned 
that while ``Respondent has failed to maintain its own recordkeeping 
system, it cannot be held responsible for all of the noncompliant 
actions of Dr. Nichol'' and that ``Nichol's failure to meet his 
responsibilities as a registrant is not a basis for refusing to grant 
the Respondent a researcher registration.'' Id.
    As for factor five--such other conduct which may threaten public 
health and safety--the ALJ noted that DEA has consistently held that an 
applicant's candor during an investigation and failure to accept 
responsibility for its misconduct are ```important factor[s] when 
assessing whether a . . . registration is consistent with the public 
interest.''' Id. at 34 (quoting Jeri Hassman, M.D., 75 FR 8194, 8236 
(2010), pet. for rev. denied, Hassman v. DEA, No. 10-70684, slip. op. 
at 4 (9th Cir., Apr. 9, 2013)). In this regard, the ALJ 
``acknowledge[d] that, from the Diversion Investigators' points of 
view, Ms. Moore appeared to change her position on her research 
experience and her experience [in] handling controlled substances.'' 
Id. Also, the ALJ found that Ms. Moore ``also vacillated in her 
testimony concerning where the controlled substance was actually 
dispensed.'' Id. The ALJ then explained that ``[t]his lack of candor 
may weigh against her being granted a DEA registration.'' Id.
    As for whether Ms. Moore had accepted responsibility, the ALJ 
reasoned that while the ``[t]he record is filled with wrongdoing done 
by Dr. Nichol, . . . his wrongdoing is not imputed to the Respondent,'' 
and that ``[e]xcept for Ms. Moore's signing for the receipt of one 
shipment of the controlled substance, . . . the Government has not 
cited to any regulatory or statutory provision resulting in a finding 
of wrongdoing done by the Respondent.'' Id. at 34-35. While the ALJ 
agreed with the Government's contention ``that Ms. Moore did not 
express any remorse for this wrongdoing,'' she ``disagree[d] that this 
one incident is enough to deny the Respondent a DEA registration.'' Id. 
at 35.
    The ALJ thus ``conclude[d] that the Government has proven that the 
Respondent lacks experience in handling controlled substances as a 
researcher,'' and that while ``in the past, this has served as a basis 
for denying a DEA registration. . . . Respondent clearly has experience 
in conducting drug research.'' Id. The ALJ then

[[Page 40148]]

observed that there was no evidence that ``Respondent's proposed 
business plan is a sham or an excuse to gain access to controlled 
substances for unlawful purposes.'' Id. The ALJ thus ``recommend[ed] 
that the Respondent's application be granted'' subject to the condition 
that ``Ms. Moore should be required to take a course in the handling of 
controlled substances for researchers.'' Id. at 36. The ALJ further 
explained that ``[i]n this way she will have the knowledge necessary to 
both maintain the records required, and to interview future researcher 
registrants to ensure they have the requisite knowledge and experience 
to handle controlled substances in a research environment.'' Id.
    The Government filed exceptions to the ALJ's Recommended Decision. 
Thereafter, the ALJ initially forwarded the transcript and exhibits, 
along with various filings, orders, and rulings (ALJ Exs. 1-10) to me. 
Thereafter, I issued an order for the ALJ to submit the rest of the 
record; on July 24, 2013, the ALJ complied.
    Having considered the record evidence, I have decided to reject the 
ALJ's Recommended Decision. While I adopt the ALJ's findings of fact 
and conclusions of law with respect to factors one and three, I reject 
her legal conclusion that Respondent is not liable for Dr. Nichol's 
misconduct in dispensing controlled substances at its Office, where Dr. 
Nichol was not registered (and when Respondent was not registered). 
Moreover, I also conclude that Respondent is liable for failing to 
maintain records which comply with the CSA. Because Ms. Moore (on 
behalf of Respondent) has not acknowledged its misconduct in allowing 
Nichol to dispense from an unregistered location and failing to keep 
compliant records, I reject the ALJ's implicit conclusion that 
Respondent's registration is consistent with the public interest. While 
I agree with the ALJ that upon taking an appropriate course, Ms. Moore 
may be able to demonstrate her ability to properly comply with 
controlled substance laws and regulations, I will not grant 
Respondent's application absent Ms. Moore's acknowledgement of her 
wrongdoing. I make the following findings of fact.

Findings

    Respondent is a limited liability company; its owner and Chief 
Executive Officer is Ms. Greta B. Moore. GXs 1; 9; 10, at 2; Tr. 48. On 
March 12, 2012, the Arkansas Department of Health, Pharmacy Services, 
issued Respondent a temporary certificate for an Arkansas Controlled 
Substances Registration. RX 19. According to the certificate, this 
license was good for a period of six months and was due to expire on 
September 12, 2012. Id. While Ms. Moore testified that her license had 
been extended for ninety days, Tr. 505, the record (as forwarded by the 
ALJ) contained no evidence as to whether this license remains current.
    Accordingly, I issued an order directing Respondent to submit 
evidence that it retains authority under Arkansas law to conduct 
research with respect to controlled substances. Order (July 16, 2013). 
On July 26, 2013, Respondent submitted an email from an official with 
the Arkansas Department of Health stating that its state registration 
was extended until December 31, 2013. Email from Marci Middleton-Yates 
to Greta Moore (July 26, 2013).
    On March 15, 2011, Ms. Moore submitted an application on behalf of 
Respondent for a DEA Certificate of Registration as a researcher in 
schedules II through V, with the proposed registered location of 3508 
JFK Blvd., Suite 1, North Little Rock, Arkansas. GX 1. However, in July 
2012, Respondent moved its office to 7510 Highway 107, Sherwood, 
Arkansas. RX 26.
    Between September 1989 and March 1997, Ms. Moore worked as a 
respiratory therapist. RX 1, at 2; Tr. 374-75. However, as the ALJ 
found, Ms. Moore's duties ``did not include keeping controlled 
substance records, and she had very limited experience handling 
controlled substances.'' R.D. at 6. More recently, from October 2007 
through December 2007, Ms. Moore worked as a Clinical Research 
Coordinator for Research Solutions, L.L.C., which was managing clinic 
trials for a Dr. Derek Lewis. RX 1, at 1-2. Ms. Moore's duties included 
the recruitment, retention, and randomization of patients. Tr. 371.
    Thereafter, Dr. Lewis decided to no longer use Research Solutions 
and hired Ms. Moore as his site manager. Id. at 372. Ms. Moore was 
involved in managing some thirty clinical trials before she was 
fired.\3\ Id. at 377, 517-18. However, none of these trials involved 
controlled substances. See RX 1, at 3-5.
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    \3\ Ms. Moore testified that she was not fired directly by Dr. 
Lewis but by Dr. Lewis' subordinates. Tr. 517-18. She further 
testified that she never learned the reason for her dismissal and 
the record contains no evidence on the issue. Tr. 518.
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    Subsequently, Ms. Moore decided to open her own business to provide 
clinical research services and formed Respondent. Tr. 373. According to 
Ms. Moore, her business is to ``talk with the doctor to determine what 
the doctor needs'' and ``put together a program that will help the 
doctor's clinical research programs,'' or to ``be a full-service 
company, whereby a doctor can come into our site and perform studies in 
our site, using our resources comparatively.'' Id. at 381. Ms. Moore 
further explained that ``[s]ome doctors like to keep their clinic 
practice and their clinical research practice separate,'' and that 
``[e]ven when a doctor is doing clinical research in his office or his 
practice, what you would generally find is that the clinical research 
practice is a total [sic] separate entity'' and that ``[t]he staff is 
totally different.'' Id. at 383. Ms. Moore also explained that while 
the doctors ``do the medical things that patients need,'' unless the 
``doctor is solely doing research . . . most of the recordkeeping is 
going to be done by the coordinator.'' Id. at 384-85. Ms. Moore then 
asserted that ``[u]ltimately the doctor is totally responsible for the 
clinical research study.'' Id.
    Ms. Moore also denied that she allowed anyone who was not licensed 
to dispense at Respondent, stating ``[w]e don't dispense. We do 
accountability. For instance, if a patient brings back the drug, then 
we are responsible to document return[ed] tablets and things like 
that.'' Id. at 386.
    Ms. Moore proceeded to market Respondent to contract research 
organizations (CROs), which are firms that drug manufacturers contract 
with to provide support services for clinical trials. Id. at 386, 389. 
In the meantime, Respondent entered into a contract with Dr. Brian 
Nichol, an interventional pain management specialist, to perform 
clinical research for it pursuant to contracts it might obtain from 
CROs. Id. at 387; GX 10.
    At some point in late 2010 or early 2011, Respondent received 
information that Quintiles, a CRO, was managing clinical trials of the 
drug Naloxol 6a-methoxyhepta(ethylene glycol) ether (hereinafter, NKTR-
118), for AstraZeneca, a large pharmaceutical manufacturer.\4\ Tr. 387-
90; GX 9. NKTR-118 is, however, a schedule II controlled substance. Tr. 
266; RX 9.
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    \4\ The name of the study was: ``An Open-Label 52-week Study to 
Assess the Long-Term Safety of NKTR-118 in Opioid-Induced 
Constipation (OIC) in patients with Non-Cancer-Related Pain.'' RX 
14, at 1.
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    Respondent applied to Quintiles to participate in the study and was 
selected by the latter for a site visit which occurred on February 15, 
2011. RX 3, at 1. During the visit, the Quintiles representative 
discussed with Dr. Nichol, Ms. Moore, and Kianna Marshall (Respondent's 
research project

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coordinator, see GX 9, at 1) ``the protocol, . . . investigational 
product storage, [the] document storage areas, lab area, patient exams 
rooms, and monitoring areas.'' RX 4, at 1. The Quintiles representative 
further advised Dr. Nichol and Ms. Moore of other requirements for 
participating in the study, including that ``[t]he site must obtain a 
DEA license for research with a controlled substance'' and provided 
``[i]nformation for obtaining this license'' to Ms. Moore. Id. 
Moreover, Ms. Moore testified that during the meeting with the 
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Quintiles representative,

we were told that the drug had been scheduled by the DEA as a 
controlled II substance, and we were also told that the pharma does 
not believe that their drug has the properties of a controlled II 
substance, but based on the scheduling, then the sites would need a 
DEA license.

Tr. 400.

    On March 30, 2011, Respondent (who was designated as the 
``Institution'') and Dr. Nichol (who was designated as the 
``Investigator'') entered into a Clinical Trial Agreement (CTA) with 
Quintiles, to participate in the NKTR-118 long-term safety study, with 
Quintiles acknowledging its agreement on April 5. RX 14, at 1-2, 16. 
The CTA's terms required, inter alia, that ``Institution, Investigator 
and their personnel shall perform the Study at Institution's facility 
according to the Protocol and this Agreement, and shall comply with 
all: (i) Applicable local, state and federal laws and regulations 
relating to the conduct of the Study.'' Id. at 2 (emphasis added). In 
addition, Respondent and Dr. Nichol:

each represent[ed], warrant[ed] and promise[d] that . . . 
Institution and the Investigator have, at all times during the 
course of the Study, the appropriate licenses, approvals and 
certifications necessary to safely, adequately and lawfully perform 
the Study in accordance with good clinical practice, FDA 
requirements and all Applicable Laws and have no notice of any 
investigations that would jeopardize such licenses, approvals or 
certifications[.]

Id. at 2.\5\
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    \5\ The CTA also provided ``that if [the] Site has not enrolled 
at least one (1) subject by the Key Enrollment Date,'' RX 14, at 3, 
which was ``100 Calendar Days after [the] Site Initiation Visit,'' 
id. at 1, then Quintiles could terminate the agreement. Id. at 3.

    As stated above, on March 14, 2011, Ms. Moore applied on 
Respondent's behalf for a DEA researcher's registration. GX 1. On March 
31, 2011, a DEA Diversion Investigator (DI) with the Little Rock 
District Office sent Ms. Moore a list of various items of information 
that she should have available during the on-site inspection, RX 7, at 
2; and on April 14, 2011, two DIs went to Respondent's then-location to 
conduct a pre-registration investigation. Tr. 31. The DIs determined 
that Respondent's facility was located on the ground floor of an office 
building, and that while the entire building had an alarm system, if 
another tenant turned off the alarm or left the building without 
turning the alarm on, the building would not be secure. Tr. 158-59. 
However, in response to the DIs' concerns, Ms. Moore installed an alarm 
in her office. Id. at 159-60.
    During the visit, the DIs interviewed Ms. Moore, who told them that 
the proposed research involved studying the safety of NKTR-118 for use 
on patients with opiate-induced constipation. Tr. 266. Ms. Moore told 
the DIs that the drug would be supplied by Fisher Clinical Services and 
stated that Respondent had a contract with Fisher to provide the drug; 
however, when asked to provide the contract, Ms. Moore could not do so. 
Id. at 267. Ms. Moore also told the DIs that Dr. Brian Nichol ``would 
be the principal investigator.'' Id. at 297. A DI who conducted the 
inspection testified that it was her understanding that Ms. Moore and 
Ms. Marshall ``would dispense the drugs'' and that Dr. Nichol ``would 
come into the clinic approximately two to three times a week and 
basically review the charts and do the patient evaluations.'' Id. at 
298.
    At the conclusion of the interview, the Senior DI provided Ms. 
Moore with a copy of the Code of Federal Regulations. Id. at 274. She 
also reviewed the recordkeeping requirements of Part 1304, as well as 
the requirements pertaining to the ordering of schedule II controlled 
substances under Part 1305. Id.
    On April 21, 2011, Ms. Moore sent a letter by fax to the Senior DI, 
stating that Respondent had installed ``an in suite alarm.'' RX 12. On 
April 27 (following a phone conversation two days earlier), Ms. Moore 
sent an email to the DI explaining that Respondent had met all 
requirements; Ms. Moore also wrote that it was ``not required to have 
any site license(s) to conduct human subject research.'' RX 13, at 1. 
Ms. Moore further noted that the DI had told her that the DI's 
``superior had a couple of questions regarding our application'' and 
advised that ``if there are more questions please email me.'' Id. 
Following additional emails sent by Ms. Moore on April 29 and May 4, 
2011 asking the DI if there were ``[a]ny further requirements,'' on May 
6, the DI wrote Ms. Moore that she ``need[ed] a copy of your signed 
contract with Fisher for further review of your application.'' RX 13, 
at 1-2. Ms. Moore then emailed the Quintiles representative who had 
performed the February on-site visit, asking if she had a copy of the 
Fisher contract; the Quintiles Representative agreed to ``get right on 
this.'' RX 13, at 3.
    Less than a week later, Ms. Moore emailed the DI regarding the 
issue and discussed a phone conversation the DI had with another 
representative of Quintiles, who explained that Respondent did not have 
a contract with Fisher but rather with Quintiles. RX 15, at 1. Ms. 
Moore then stated that the Quintiles representative had advised her to 
send a copy of Respondent's contract with Quintiles, as well as a 
letter from the FDA's Controlled Substance Staff to Astra Zeneca. Id. 
Ms. Moore testified that she sent these documents as an attachment to 
the email. Tr. 450. Ms. Moore further wrote that ``[i]f I have not 
proceeded properly, or additional information is needed please let me 
know as soon as possible, as time is of the essence.'' RX 15, at 1. Id. 
In response, the DI asked Ms. Moore to come to the DEA office ``to 
discuss further details regarding [the] application. Id. at 2.
    On May 16, Ms. Moore went to the DEA Office and met with the two 
DIs who had made the onsite inspection and the Diversion Group 
Supervisor (GS). Tr. 32-33. According to the GS, she was concerned as 
to whether Ms. Moore was qualified to be a researcher ``because she did 
not have MD, DO or Ph.D. behind her name'' and ``didn't know what kind 
of qualifications, training, or experience she had.'' Id. at 34. The GS 
testified that she checked the registration database to see ``if DEA 
had granted any other registrations to persons who were not licensed in 
that fashion,'' id. at 34-35, ``printed out all of Fisher's 
customers,'' id. at 39, and determined that they were generally medical 
doctors, doctors of osteopathy, or Ph.D.s ``affiliated with a hospital 
or a university.'' Id. at 42.
    During the interview, Ms. Moore was asked about her experience in 
handling controlled substances. Id. at 49. According to the GS, Ms. 
Moore ``at first . . . said she had quite a bit of experience, but upon 
further questioning, it turned out [that] controlled substances were in 
the facility, but she did not actually handle the drugs herself.'' Id. 
Ms. Moore further stated that she did have research experience, which 
primarily involved ``handling the paperwork.'' Id. at 50.
    During the interview, Ms. Moore stated that Dr. Nichol would be 
responsible for ordering and receiving the controlled substances at

[[Page 40150]]

Respondent, as well as keeping the controlled substance records for it. 
Id. at 50-51. Ms. Moore also stated that Dr. Nichol ``would be present 
at [Respondent] three to four days a week.'' Id. Dr. Nichol was 
registered at 5106 McClanahan Drive, Suite B, North Little Rock, 
Arkansas. Tr. 487 (testimony of Ms. Moore); RX 22.
    According to Ms. Moore, during the meeting, the DIs told her that 
her application was being denied because she did not met the 
``criteria'' found in the U.S. Code. Id. at 457, 460. Ms. Moore 
testified that when she asked what criteria she did not meet, a DI said 
that Fisher (the drug supplier) ``only contracted with doctors.'' Id. 
at 458. Ms. Moore testified that she had previously sent a copy of the 
contract she had with Quintiles \6\ to the DI and clarified that ``I 
did not have a contract with Fisher.'' Id. Upon reviewing the 
provisions of the U.S. Code, the GS told Respondent that she did not 
have a state license and lacked experience in dispensing controlled 
substances. Id. at 462. The DIs eventually asked Ms. Moore to withdraw 
her application; when Ms. Moore declined to do so, the DIs told her 
that they would file an order to show cause. Id. at 464.
---------------------------------------------------------------------------

    \6\ As found above, Ms. Moore had previously sent a copy of her 
contract to the DI. RX 15.
---------------------------------------------------------------------------

    In a subsequent phone conversation, Dr. Nichol confirmed to a DI 
that he would be ordering the drugs and acting as Respondent's medical 
director. Id. at 56. Dr. Nichol also stated that ``[a]fter the initial 
work-up of a new patient coming to the clinic for the trial . . . he 
would be at the clinic once a month for about 30 minutes or so to 
dispense the medications.'' Id. at 56-57. However, according to the GS, 
Dr. Nichol also stated that he was not ``going to do research at his 
own facility, because he didn't have the staff.'' Id. at 57.
    On some date which is not clear on the record, Ms. Moore started 
recruiting patients by advertising the study on television. Id. at 473-
74. Following screening, which included a physical exam by Dr. Nichol, 
various patients who met the criteria for participation were placed in 
the study.\7\ Id. at 475-77. In total, eleven patients were selected 
for the studies, with five being placed in the Kodiac 8 study (two of 
whom dropped out) and six being placed in the Kodiac 5 study. Id. at 
477, 481.
---------------------------------------------------------------------------

    \7\ The criteria included that the patients could not be using 
any prohibited medications, must be taking a specified amount of 
opiates (which were prescribed by their regular doctor), and could 
not ``have any GI conditions.'' Tr. 476-77.
---------------------------------------------------------------------------

    Ms. Moore testified that she was aware that Dr. Nichol had a DEA 
registration and it was her understanding that he could ``participate 
in our study'' and ``dispense'' the drugs. Id. at 484-85. Ms. Moore 
testified, however, that Dr. Nichol was registered at 5106 McClanahan, 
Tr. 487, and not at Respondent's office. Ms. Moore further maintained 
that the drugs were to go to Dr. Nichol's site and that ``he would be 
required to dispense the drug to the patients'' and the drugs were not 
to be stored at Respondent. Id. at 485. Ms. Moore denied that she 
dispensed any of the drugs. Id. at 486. However, when asked where Dr. 
Nichol dispensed the drugs, Ms. Moore testified that he ``dispensed the 
drug in his site or MCT.'' Id.\8\ Ms. Moore admitted that she never 
asked the DEA Investigators whether Dr. Nichol could lawfully transport 
the controlled substances to Respondent and dispense them there. Id. at 
538.
---------------------------------------------------------------------------

    \8\ When asked why, at the beginning of the study, Dr. Nichol 
would dispense at his office rather than at Respondent's location, 
Ms. Moore offered the incoherent response that: ``He's a busy 
doctor, and where it was an inconvenience to the patients to go 
there, we would send the patients there, because he may not be able 
to . . . meet them, so we would send them there, and he would 
dispense there.'' Tr. 488.
---------------------------------------------------------------------------

    Ms. Moore testified that in ``early 2012 \9\,'' she learned that 
Dr. Nichol's relationship with DEA had changed and he ``was no longer 
allowed to dispense from'' Respondent. Id. at 497-98. Ms. Moore 
subsequently explained that this occurred around the time that Nichol 
entered into a Memorandum of Agreement (MOA) with DEA. Id. at 615-16. 
Ms. Moore maintained that following this, ``[a]ll the patients were . . 
. dispensed from Dr. Nichol's office.'' Id. at 498. However, patients 
would still come to Respondent for lab draws and EKGs, as there were 
``different procedures that would need to be done where the equipment 
was.'' Id. at 499.
---------------------------------------------------------------------------

    \9\ Subsequently, Ms. Moore testified that she learned about the 
MOA in ``[m]id-2012. I say in the middle range of the year.'' Tr. 
631.
---------------------------------------------------------------------------

    In November or December 2011, one or more of the DIs ``saw a 
television commercial'' which sought patients to participate in the 
NKTR-118 study. Id. at 58. In either February or March 2012, a DI 
contacted the Arkansas Department of Health and asked an official if 
Respondent had received a state license. Id. The official stated that 
``Dr. Nichol had given them a letter, and . . . stated that he would be 
transporting this NKTR drug to [Respondent] for the research project.'' 
Id. at 58-59.
    Months later, in July 2012, the GS contacted John Wegner, a 
Quintiles official and asked if Quintiles had approved Respondent for 
participation in the NKTR-118 study. Id. at 61. The GS testified that 
the reason why she had contacted Mr. Wegner was ``because we saw the 
commercials on TV that [Respondent] was doing research.'' Id. It is 
unclear, however, whether the impetus for this contact were the 
commercials that the DIs had seen in late 2011 or more recent ones.
    In any event, Mr. Wegner told the GS that Dr. Nichol was ordering 
the controlled substances, which were being shipped to Nichol's 
registered location, and that Dr. Nichol was transporting them to 
Respondent, where they were being dispensed. Id. at 61-62; see also GX 
16, at 2. The GS told Mr. Wegner that this ``was illegal because 
[Respondent] was not a DEA-registered location.'' Tr. 62. The DI then 
contacted Mr. Jim Phillips, Dr. Nichol's attorney, and asked him if 
Nichol was involved in the research study and transporting controlled 
substances to Respondent. Id. at 63. Mr. Phillips acknowledged that 
Nichol was involved in the study and that he was transporting the 
controlled substances to Respondent and dispensing them. Id. Moreover, 
Mr. Phillips stated that this had been ongoing ``[a]t least since April 
of 2012.'' Id. at 64. However, Mr. Phillips did not know if Dr. Nichol 
had been doing this even earlier. Id.
    The DI also requested of Mr. Phillips that Dr. Nichol provide his 
records, including the dispensing records and the schedule II order 
forms (DEA Form 222). Id. Two weeks later, Mr. Phillips contacted the 
DI and explained that because the NKTR-118 study was double blinded, 
neither the patient nor Dr. Nichol knew which patient received the 
schedule II drug or the placebo. See GX 16, at 1-2. In the letter, Mr. 
Phillips further wrote that ``Dr. Nichol will administer the drugs only 
at his DEA approved address'' and that ``[w]e will notify the DEA in 
advance of any upcoming trials involving controlled substances.'' Id. 
at 2. Mr. Phillips then acknowledged that ``[a]ll of this has been 
previously agreed upon and is clearly stated in the'' MOA.\10\ Id.
---------------------------------------------------------------------------

    \10\ The MOA between DEA and Dr. Nichol was submitted into 
evidence by Respondent. See RX 22. The Agreement recounts that 
``[o]n September 27, 2011, DEA issued an Order to Show Cause'' to 
Dr. Nichol, which proposed the revocation of his registration based 
on three allegations. Id. at 1. First, that the Arkansas State 
Medical Board had found that Dr. Nichol ``pre-signed controlled 
substance prescriptions, which were then issued to patients by [his] 
staff '' when he was ``not present and [was] not consulted by [his] 
staff when [the] prescriptions were issued.'' Id. Second, that in 
May 2008, he was convicted of health care fraud, in violation of 18 
U.S.C. 1347, and was subsequently excluded from participating in 
Medicare and Medicaid by the Department of Health and Human Services 
pursuant to 42 U.S.C. 1320a-7(a). Id. Third, that he ``contracted 
with a researcher to administer a controlled substance [NKRT-118] to 
research subjects,'' but that ``[t]he owner/operator of this 
research clinic has no experience handling controlled substances, 
and that [he] and the owner/operator gave conflicting information 
about the operation of this research clinic.'' Id. at 1-2.
     Notwithstanding these allegations, the Agency allowed Dr. 
Nichol to retain his registration subject to various terms and 
conditions. Of relevance here, Dr. Nichol agreed that he ``will not 
administer or dispense . . . controlled substances except in the 
course of his own medical practice as an individual practitioner and 
will administer or dispense . . . controlled substances only from 
his DEA registered location. As the physician who is contracted to 
administer the FDA approved study drug NKTR-118, Dr. Nichol will 
administer that drug at either his DEA registered location or at an 
approved site for the current drug study.'' Id. at 3. The Special 
Agent in Charge approved the MOA on April 17, 2012, and Dr. Nichol 
signed the agreement on April 20, 2012. Id. at 4.

---------------------------------------------------------------------------

[[Page 40151]]

    In late July 2012, the GS was notified that Respondent was moving 
its office. Tr. 69. On August 24, 2012, the GS and another DI went to 
Respondent's new office to conduct an inspection, and met with Ms. 
Moore and her attorney, Ashley Hudson. Id. at 70-71. According to the 
GS, Ms. Moore ``explained her recordkeeping system to us, how she got 
the drugs, how she made the records. She showed us how they logged 
dispensations to the patients. She also had copies of the DEA 222 order 
form in her notebook.'' Id. at 71-72. Ms. Moore explained, however, 
that the records onsite were copies and that ``all the originals were 
kept at Dr. Nichol's registered location.'' Id. at 72-73.
    The GS testified that upon seeing the records, she asked Ms. Moore 
where the NKTR-118 was being dispensed, and that Ms. Moore stated that 
``the drugs were dispensed at Moore Clinical Trials.'' Id. at 72; see 
also id. at 711 (testimony of second DI that during August 24 
inspection, Ms. Moore ``stated that NKTR was dispensed from the new 
location . . . in Sherwood, Arkansas,'' and that Ms. Moore never stated 
that Nichol had dispensed the NKTR at his office). The GS further 
testified that Ms. Moore also ``stated that Dr. Nichol had transported 
[the] drugs to that location [Respondent's previous office] as well.'' 
Id. at 72.
    After Ms. Moore told the GS that Nichol had been transporting the 
drugs to Respondent and dispensing them, the GS told Ms. Moore that 
this was illegal because Respondent's location was not registered. Id. 
at 74. According to the DI, Respondent ``made no comment'' in response. 
Id. Nor, according to the GS, did Ms. Moore ever assert that any of the 
dispensings had occurred at Dr. Nichol's office.\11\ Id.
---------------------------------------------------------------------------

    \11\ At the hearing, Ms. Moore denied that it was her 
understanding that Respondent could not dispense controlled 
substance until it got its DEA registration; she also testified that 
she did not think that it was illegal for Dr. Nichol to bring the 
controlled substances to Respondent and dispense them there. Tr. 
537-39. Still later, Ms. Moore testified that she ``didn't 
understand that [Respondent] was dispensing or ordering'' and 
asserted that ``[w]e weren't dispensing or ordering any controlled 
substances.'' Id. at 597.
---------------------------------------------------------------------------

    On cross-examination, the Government asked Ms. Moore if she had 
informed the DIs that she understood ``that Dr. Nichol was no longer 
allowed to dispense NKTR from MCT.'' Tr. 534. Respondent answered:

    I didn't understand that the investigators were coming to my 
site to talk about Dr. Nichol. I thought they were coming to my site 
to look at my site to get further information about my 225 
application. I didn't inform them anything about Dr. Nichol until 
the very end, when I was asked that very question.

Id. at 534-35.

    The Government then asked Ms. Moore: ``[s]o you're asked, where is 
Dr. Nichol dispensing the NKTR, and your answer to them was at MCT. Is 
that correct?'' Id. at 535. Ms. Moore replied:

    That is not correct. I was not asked that. Actually, there was a 
statement made to me by [the] GS . . . that said, you know Dr. 
Nichol is not supposed to dispense from MCT. And I said, Uh-huh-yes.

Id. However, Ms. Moore did admit that ``for part of the time,'' 
Respondent's arrangement was that Dr. Nichol ``was to receive the 
controlled substances in his office'' and subsequently take them to 
Respondent to dispense the drug to the research subjects. Id. at 538.

    The GS also testified that the records did not indicate the name or 
initials of the person who had dispensed the drugs. Id. at 73. The GS 
then asked Ms. Moore who had dispensed the drugs; Ms. Moore said that 
Dr. Nichol had. Id. at 73-74. Moreover, the GS testified that upon 
reviewing the DEA Form 222s, the forms did not indicate the date the 
drugs were received and the quantity received. Id. at 78.
    On September 4, 2012, the GS received the dispensing records she 
had previously requested from Mr. Phillips, Dr. Nichol's attorney. Id. 
at 75-76; see also GX 14. While the GS testified that the records show 
that the controlled substances were dispensed at Dr. Nichol's 
registered address, id. at 76, only the first page of the forms, which 
is not a dispensing record at all but rather a list of persons 
designated by Dr. Nichol ``to access controlled substances at the above 
location address,'' listed Dr. Nichol's address. See GX 14, at 1. With 
the exception of a single shipping document entitled ``Blinded Shipment 
Request,'' which appears to have been created by Astra Zeneca, see GX 
14, at 13, all of the forms are designated as an ``MCTLLC Form'' with a 
number,\12\ and stated that they were ``[c]reated by: Moore Clinical 
Trials LLC'' on August 27, 2012. See generally GX 14.
---------------------------------------------------------------------------

    \12\ More specifically, MCTLLC Form 5 lists the persons who Dr. 
Nichol authorized to access the controlled substances, see GX 14, at 
1; MCTLLC Form 4 lists the DEA Order Forms (222s) which were 
submitted to Fisher Clinical Services, along with the amounts 
ordered and received, as well as the dates of the orders and 
receipts, see id. at 2; MCTLLC Form 2 lists the drug, the quantity, 
the date received, the distributor, and the invoice number, id. at 
4; MCTLLC Form 3 is a perpetual inventory which lists quantities on 
hand, the amounts received in incoming shipments, the amounts 
dispensed along with the study subjects' initials and subject 
number, and the amounts returned by them, id. at 5; and MCTLLC Form 
1 lists the inventory, including incoming shipments but not the 
drugs dispensed. Id. at 8. The latter also includes a final entry, 
dated August 27, 2012, the same date the document was created, that 
lists the number of bottles unused and the number of tablets that 
were returned by the study subjects. See id. at 9.
---------------------------------------------------------------------------

    As for the shipping document, while it lists eighteen kits of 
``[r]andomised (blinded) drug'' and Dr. Nichol's registered location as 
the Shipping Address, it also listed Respondent's phone number as the 
``shipping phone.'' Id. at 13; Tr. 84-85. The GS testified that Ms. 
Moore had signed for the drugs. Tr. 85.
    Regarding the records created by Respondent, the GS further 
testified that they did not differentiate between the two strengths of 
the drug. Tr. 88. And regarding Respondent's Form 1, an inventory 
record for the Kodiac 5 arm, see GX 14, at 22; the GS testified that 
the figure for the quantity on hand in the final entry of August 28, 
2012 was erroneous. Id. at 90. The GS testified that the correct figure 
should have been 3500 dosage units and not either the number 1120, 
which was lined out, or the number 1373. Id. According to the GS, when 
the numbers were added up--more specifically the 32 bottles (each 
containing 35 dosage units) that were listed on the form as ``number of 
kits/bottles received'') to the previous quantity on hand figure of 
2380--the total was 3500. Id.; see also Tr. 134.
    On cross-examination, the GS was asked to explain how she came up 
with this figure. The GS maintained that she did so by ``following the 
methodology that Ms. Moore used, that 32 bottles at 35 tablets apiece 
is 1,120 tablets,'' and that she added these tablets to the previous 
quantity on hand ``[b]ecause all the other entries were added in.'' Id. 
at 131-32. When then asked what was listed in the August 28, 2012 entry 
for the Shipment ID Number, the GS acknowledged that the entry stated: 
``Kits Remaining Unused'' and that no shipment was listed. Id. at 132. 
When

[[Page 40152]]

asked if she counted the 32 bottles as a new shipment, the GS testified 
that: ``I counted it because it was the same methodology. Now, if it 
had been just the number of tablets remaining, it would have been the 
1,120, which is crossed out.'' Id. at 133. The GS then denied that the 
math would have worked out if she had just calculated the 32 bottles as 
``kits remaining unused'' and asserted that ``[t]he math works with the 
1,373 number.'' Id.
    Throughout her testimony, the GS insisted that in coming up with 
the 3500 figure, she was following Ms. Moore's methodology.\13\ See id. 
at 134-35. However, the GS acknowledged that she did not contact either 
Ms. Moore or Dr. Nichol and ask them what ``kits remaining unused 
meant.'' Id. Ms. Moore later explained that this term meant ``kits that 
were never dispensed'' and that this entry did not reflect a new 
shipment. Id. at 622.
---------------------------------------------------------------------------

    \13\ Likewise, in determining the closing inventory for the 
drugs that were received and dispensed in the Kodiac 8 study, the GS 
determined that ``the correct math'' was 822 dosage units and not 
192 dosage units as recorded on the form. See GX 14, at 9; Tr. 105-
07. However, the form was not a perpetual inventory, but rather, a 
record of inventories taken periodically as well as when shipments 
were received. See GX 14, at 8-9. Here again, the last entry (which 
is dated August 27, 2012) does not list a ``Shipment ID Number.'' 
Id. at 9. Rather, it states ``unused/returned'' in this column and 
indicates that 105 (3 kits) were unused and 87 tablets were 
returned, for a total quantity on hand of 192. See id. The GS, 
however, simply added up the figures for each shipment, as well as 
the figures that were listed for August 27, and concluded that Dr. 
Nichol should have had on hand 822 dosage units. See id; GX 15; Tr. 
106-07.
---------------------------------------------------------------------------

    The GS testified that using the records provided by Dr. Nichol's 
attorney, she created a computation chart in which she added the 
quantities of drugs received in each arm of the study to the initial 
inventory (which was zero), to determine the total amount that Dr. 
Nichol was accountable for; she then took what she called the closing 
inventory and added to it the quantities which were distributed to 
calculate the total amount Nichol could account for, and compared the 
two. Tr. 95-100; GX 15. However, the closing inventory was not based on 
an actual physical count performed by the DIs but on the records 
provided by Dr. Nichol. Tr. 99, 623.
    The GS further testified that she made two sets of calculations, 
one based on the closing inventory figures Ms. Moore listed on the 
documents, and the other based on what the GS called ``the correct 
math.'' Id. at 105. Subsequently, the GS testified that this was not 
``a normal DEA audit'' and that these ``are Dr. Nichol's records'' and 
``not Ms. Moore's records.'' Id. at 142. Moreover, the GS testified 
that she did not contact Dr. Nichol about the records. Id. at 143.
    Regarding the records which were provided by Dr. Nichol's counsel, 
Ms. Moore acknowledged that she had created them, and that they had 
been created between August 24 and 27, 2012. Tr. 544-45. The Government 
also asked about a computation chart (GX 18), which Ms. Moore had 
created, with Ms. Moore testifying that the chart was based on Dr. 
Nichol's records for the Kodiac 5 and 8 studies. Id. at 546-48. Ms. 
Moore denied, however, that the chart should differentiate between the 
12.5mg and 25mg strength dosage units, contending that because the 
studies were blinded, she would not know which kits contained what 
strength tablet; she also testified that the information could not be 
discerned from the sponsor's records. Id. at 549.
    Ms. Moore then testified:

    I'm sorry . . . but I don't know anything about the true nature 
of creating these records. My intent in creating these records was 
simply to have [the GS] affirm to me that I was on the right track, 
so this record is not a response to any of these other beings. I'm 
simply trying to create records, because my understanding after the 
visit with [the GS] was the DEA's main concern is compliance.
    So my main concern after what I thought was my . . . on-site 
visit at the second point was to attempt to be compliant with the 
DEA, so I'm simply creating forms, not for the DEA. I didn't realize 
that the DEA was going to get these forms. The reason that the forms 
are not correct is because it was eleven o'clock at night when I did 
the forms. My intention was to have an opportunity to think on, 
[w]hy are my forms not balancing. But before I could do that, which 
would have been the next day, when I went to Dr. Nichol's office, 
the forms had been submitted to the DEA.

Id. at 550-51; see also id. at 563 (further testimony from Ms. Moore to 
same effect).\14\ And on further questioning, Ms. Moore again re-
iterated that the bottles did not indicate whether they were 12.5 or 25 
mg tablets. Id. at 553.

    \14\ See also Tr. 564 (``So these records are simply trying to 
be compliant with what I was told in my on-site visit, that we 
needed to create records for being compliant. I used these numbers, 
because this was what I had at hand, but I didn't use these for the 
DEA. I used these to say, [i]f I were a DEA registrant and I was 
going to do forms, then I have information I'm trying to put in here 
to show, hey, I know how to do it; I'm trying to do it right. But it 
may or may not balance, because it can be used like that. I'm trying 
to figure out how to do the forms.'').
---------------------------------------------------------------------------

    Regarding the computation chart Ms. Moore created (GX 18), the 
Government attempted to show that the ``total accountable for'' figures 
did not add up to the ``total accounted for.'' More specifically, the 
Government noted that on the ``total accounted for'' side of the chart, 
Ms. Moore had four columns: (1) the closing inventory, which included 
the sum of the drugs returned and not dispensed (192); (2) the number 
distributed/transferred (438); (3) the number of tablets returned 
unused (87); and (4) the number of tablets not dispensed (105). Tr. 
557; GX 18. According to Ms. Moore's chart, for the Kodiac 8 study, Dr. 
Nichol was ``accountable for'' 630 tablets and ``accounted for'' 630 
tablets. GX 18.
    The Government then asked Ms. Moore how she arrived at the 630 
figure, given the figures in the four columns totaled 822 and not 630. 
Tr. 557-60. Ms. Moore testified that ``what I attempted to do was to 
show the number of tablets that were received per these shipping 
documents. That's 630, the number of tablets that were dispensed, the 
number of tablets that were returned, the number of tablets that never 
left the site, and the closing inventory.'' Id. at 560. Ms. Moore then 
explained that ``[w]here the DEA's example of this sheet may balance 
the way you're saying, that's not the balance, because the balance can 
only be the number of tablets that were actually received per the 
shipping documents.'' Id.
    When the Government then asked if the ``total accountable for'' and 
the ``total accounted for'' should be the same, Ms. Moore replied:

    If I'm looking at this record, if I add 438, 87--perhaps I 
should have done some lines more similar to this form, where you 
could see double lines, but because I really didn't have any real 
direction on how to do it, I'm simply making an example. This is not 
for the DEA. This was simply just to try to be compliant, which is 
what I was told.

Id. at 560-61; see also id. at 570 (``This is not a record for the DEA. 
This is simply just to try to be compliant, to try to do what [the GS] 
told me in my meeting that I did not realize was an audit.''). Ms. 
Moore added that she was ``simply learning how to do the form, trying 
to do the form properly, but you can't use this form as a proper 
documentation of anything. This form balances to my sponsor form, which 
is what is important to me, that my sponsor's count is correct.'' Id. 
at 561.\15\ However, on redirect, Ms. Moore clarified that ``the number 
of tablets returned unused, plus the number of tablets not dispensed'' 
equals the closing inventory. Id. at 625. She also testified that the 
``number of tablets returned unused'' was documented ``[i]n

[[Page 40153]]

our sponsor's records\16\,'' and that ``every time the patient would 
return drug, you're required to do accountability, because in the 
study, there's a certain accountability that the patient has to 
maintain to stay in the study.'' Id. at 636-37. Finally, Ms. Moore 
testified that the numbers on the forms she created ``match my 
sponsor's records'' and that ``[t]he sponsor has signed off on the 
records.'' Id. at 638.
---------------------------------------------------------------------------

    \15\ Ms. Moore further testified that the GS had told her she 
``could email a form that I put together, and she would give me a 
response on whether it was the information that was needed for the 
DEA.'' Tr. 620. Ms. Moore asserted that she did send the GS a form 
to review but received no response. Id. at 621; see also RX 25.
    \16\ On rebuttal, Respondent also introduced copies of a Sponsor 
Record entitled: ``NKTR-118 Accountability Form.'' RX 23. This form 
includes a column for the date drugs were either received or 
dispensed, a column for a shipment ID number, a column for a Subject 
Number, Kit Number, number of tablets dispensed or returned, the 
recorder's initials, the balance, and comments (the latter 
indicating whether drugs were dispensed or returned, or a new 
shipment was received). See RXs 23 & 24. While these records were 
introduced into the record to refute the testimony of the DIs that 
Dr. Nichol had continued to dispense controlled substances from 
Respondent's new office, the documents show that a dispensing 
occurred on August 3, 2012, two days after Ms. Moore said the new 
office had opened. See RX 23, at 12; RX 26, at 2.
---------------------------------------------------------------------------

    Regarding the forms she created (GX 14), Ms. Moore testified that 
she used the sponsor's records to create them. Id. at 562. Ms. Moore 
further explained that:

[t]hose are the records that are important to the sponsor and 
important to the study. Nowhere in keeping records was there ever 
any indication, until [the GS] came to my site, that we were to keep 
two sets of books. I never heard that, but I'm not a registrant, so 
maybe if I were, I would have heard it and known that. But this was 
simply in response to the on-site visit in my office on 24th of 
August 2012.

Id. at 564-65. Still later, Ms. Moore reiterated that she was not aware 
that Dr. Nichol was required to keep controlled substance records for 
the NKTR studies (for DEA) until the August 24, 2012 visit. Tr. 822-23.

    Addressing the GS's computation chart (GX 15), Ms. Moore maintained 
that the Kodiac 8 study had received only 630 dosage units and not 717 
as asserted by the GS. Tr. 574. She also disputed the GS's conclusion 
that using the ``correct math'' for the Kodiac 8 study resulted in an 
overage of 630 dosage units. Id. at 575. And when asked about the 
closing inventory figure for the Kodiac 5 study (GX 14, at 22), Ms. 
Moore maintained that neither the GS's 3500 figure, nor the 1120 figure 
(which was crossed out), were correct. Tr. 576. Instead, she explained 
that 1373 (as is written on the form) was correct, because it included 
both the bottles that were not dispensed (32, each with 35 tablets) and 
the tablets that the patients returned.\17\ Id.
---------------------------------------------------------------------------

    \17\ Having reviewed Respondent's Form 3 for the Kodiac 5 study, 
see GX 14, at 14-20; I find that 253 tablets were returned by the 
study subjects. When added to the number of dosages units that were 
not dispensed (1120), the total is 1373.
---------------------------------------------------------------------------

    The Government also asked Ms. Moore if she knew ``that it is a 
required dispensing record to put down the location where the 
controlled substances were dispensed from?'' Tr. 583. Ms. Moore 
testified that she does not

know what is required, but as a compliant person, I'm more than 
happy to learn what is required as a DEA registrant, because I am 
prepared to do whatever needs to be done, as I do my clinical 
research, because there are requirements that are required there as 
well. So after I learn what is required . . . I'm fully prepared to 
be compliant.

Id. at 584. Ms. Moore also testified that in her discussion with the GS 
regarding the records, the GS ``did not'' tell her that she needed to 
have a column to indicate where the drugs were dispensed.\18\ Id. at 
620.

    \18\ Respondent also called as a witness a former DEA Diversion 
Investigator from the Little Rock office, who asserted that Ms. 
Moore's application was not handled in the same manner as other 
researchers' applications, which apparently he routinely approved in 
a perfunctory fashion such as by not even writing the required 
reports. Tr. 657-58, 716. In addition to expressing his typically 
erroneous views on various issues (such as whether NKTR-118 was 
subject to being removed from the schedule of controlled substances 
or moved to a less-restrictive schedule, see id. at 685-86, 714), 
the former DI also alleged that one of the subordinate DIs involved 
in the investigation of Respondent had been the subject of an 
investigation by the Office of Professional Responsibility into her 
use of racial slurs made to a roommate at the DEA Academy, and that 
someone intervened to prevent her termination. Tr. 665. The former 
DI also provided an affidavit, in which he stated: ``I speculate 
that when the Investigators learned of Ms. Moore's race, that this 
may have contributed to an Investigator requesting Ms. Moore's 
application be denied. The Investigator has a history of racial 
problems.'' RX 21, at 2. However, when asked what information he had 
that there was a specific complaint that the DI had engaged in 
racist conduct, the former DI replied: ``What information do I have? 
You want details on the allegation?'' Tr. 695. The former DI then 
further acknowledged that he did not have the names of those 
involved in the purported incident. Id.
    The former DI did not identify any incidents on the part of the 
Investigator beyond the purported incident described above, and on 
rebuttal, the GS testified that she had checked with the Agency's 
Office of Professional Responsibility and determined that no 
complaint had ever been filed against the DI. Tr. 715.
    Moreover, the former DI admitted that he had been denied a 
permanent promotion to Group Supervisor and had resigned after the 
Agency proposed his removal for failing to meet medical standards. 
Id. at 697, 700. Thereafter, the former DI filed an EEO complaint, a 
petition before the Merit Systems Protection Board, and two lawsuits 
against the Agency challenging his removal on various grounds. Id. 
at 696-701. However, the former DI lost every challenge. See id. Of 
further note, the DI, who he had accused of racism, had testified 
against him in a federal court proceeding in which he unsuccessfully 
sought to enjoin his removal. Id. at 697-98.
    As did the ALJ, I reject the former's DI contention that Ms. 
Moore was treated differently on account of her race. See R.D. at 8 
n.3. While there is evidence that other researchers' application 
were approved during the former DI's time in Little Rock without an 
on-site inspection, as the GS testified, Ms. Moore was neither a 
medical doctor nor a Ph.D., as is typically the case with researcher 
applicants, and she also had no experience in conducting research 
with respect to controlled substances. Beyond the fact that Agency 
personnel have discretion to conduct an on-site inspection whenever 
they deem it necessary, the unique circumstances posed by this 
applicant clearly warranted an on-site inspection.
---------------------------------------------------------------------------

    On cross-examination, the Government also asked Ms. Moore whether, 
prior to entering into the contract with Dr. Nichol in 2010, she was 
aware of his history with the Arkansas Medical Board, which had 
suspended him for pre-signing controlled substances prescriptions. Id. 
at 590. Ms. Moore answered that she was not aware of his history, but 
was aware that he had a current medical license. Id. Ms. Moore then 
added that she found out ``some things'' later, but could not say when 
she did. Id.
    The Government then asked Ms. Moore whether, prior to entering into 
the contract with Dr. Nichol in 2010, she was aware that he had been 
convicted of felony health care fraud in federal district court. Id. 
Apparently referring to an un-admitted exhibit, Ms. Moore testified 
that she had ``never seen this before'' but that she ``would like to 
have . . . documentation to just confirm . . . what you're saying is 
true.'' Id. at 590-91. Ms. Moore then testified that she did not know 
this information, and that she ``can't just confirm it, based on what 
you're showing me here.'' Id. at 591. When the Government followed-up 
by asking whether, regardless of the documentation (that was not 
admitted), she knew, prior to entering into the contract, that Dr. 
Nichol had been suspended by the state board and been convicted of 
health care fraud, Ms. Moore testified that she did not ``know the 
answer to that'' but did ``know that in our relationship, I knew it.'' 
Id. at 592. Ms. Moore then explained that when she ``met Dr. Nichol, he 
had a valid license, and he was not under any restrictions on the 
license that I obtained, and so in my estimation of our business 
relationship, he was okay to do research.'' Id.

Discussion

    Section 303(f) of the Controlled Substances Act (CSA) provides that 
``[t]he Attorney General shall register practitioners . . . to 
dispense, or conduct research with, controlled substances in schedules 
II, III, IV, or V . . . if the applicant is authorized to dispense, or 
conduct research with respect to, controlled substances under

[[Page 40154]]

the laws of the State in which [s]he practices.'' 21 U.S.C. 823(f). 
However, ``[t]he Attorney General may deny an application for such 
registration . . . if the Attorney General determines that the issuance 
of such registration . . . would be inconsistent with the public 
interest.'' Id. In making the public interest determination, the CSA 
directs that the following factors be considered:

    (1) The recommendation of the appropriate State licensing board 
or professional disciplinary authority.
    (2) The applicant's experience in dispensing or conducting 
research with respect to controlled substances.
    (3) The applicant's conviction record under Federal or State 
laws relating to the manufacture, distribution, or dispensing of 
controlled substances.
    (4) Compliance with applicable State, Federal, or local laws 
relating to controlled substances.
    (5) Such other conduct which may threaten the public health and 
safety.

Id.

    ``[T]hese factors are . . . considered in the disjunctive.'' Robert 
A. Leslie, M.D., 68 FR 15227, 15230 (2003). It is well settled that 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.; see also MacKay v. 
DEA, 664 F.3d 808, 816 (10th Cir. 2011); Volkman v. DEA, 567 F.3d 215, 
222 (6th Cir. 2009); Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir. 2005). 
Moreover, while I am required to consider each of the factors, I ``need 
not make explicit findings as to each one.'' MacKay, 664 F.3d at 816 
(quoting Volkman, 567 F.3d at 222); see also Hoxie, 419 F.3d at 
482.\19\
---------------------------------------------------------------------------

    \19\ In short, this is not a contest in which score is kept; the 
Agency is not required to mechanically count up the factors and 
determine how many favor 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 
or applicant's misconduct. Jayam Krishna-Iyer, 74 FR 459, 462 
(2009). Accordingly, as the Tenth Circuit has recognized, findings 
under a single factor can support the revocation of a registration. 
MacKay, 664 F.3d at 821. Likewise, findings under a single factor 
can support the denial of an application.
---------------------------------------------------------------------------

    The Government has ``the burden of proving that the requirements 
for . . . registration . . . are not satisfied.'' 21 CFR 1301.44(d). 
However, where the Government has met its prima facie burden of showing 
that issuing a new registration to the applicant would be inconsistent 
with the public interest, an applicant must then ``present sufficient 
mitigating evidence'' to show why she can be entrusted with a new 
registration. Medicine Shoppe-Jonesborough, 73 FR 364, 387 (2008) 
(quoting Samuel S. Jackson, 72 FR 23848, 23853 (2007) (quoting Leo R. 
Miller, 53 FR 21931, 21932 (1988))).
    In this matter, I have considered all of the factors. I agree with 
the ALJ's finding that Ms. Moore violated federal law when she signed 
for and took possession of a shipment of controlled substances and 
Respondent was not registered. Moreover, I further agree with the ALJ's 
finding that Dr. Nichol violated federal law when he dispensed 
controlled substances at Respondent's office without being registered 
at that location.
    However, for reasons explained below, I reject the ALJ's conclusion 
that Dr. Nichol's misconduct cannot be imputed to Respondent because 
the Government has not proved that he acted as Respondent's agent. 
Contrary to the ALJ's understanding, the Government was not required to 
prove an agency relationship existed in order to impute Dr. Nichol's 
violations to Respondent and Ms. Moore. Rather, Dr. Nichol's violations 
can be imputed to Ms. Moore and Respondent because at a minimum, the 
evidence shows that they aided and abetted his violations of federal 
law in dispensing controlled substances at Respondent, which was not 
registered. Moreover, I find that Ms. Moore and Respondent failed to 
maintain complete and accurate records as required by the CSA. Because 
Ms. Moore has failed to accept responsibility for both the dispensing 
and recordkeeping violations, and, as found by the ALJ, lacked candor 
in her testimony regarding the dispensing violations, I conclude that 
she has not rebutted the Government's prima facie case.

Factor One--The Recommendation of the State Licensing Authority

    Pursuant to 21 U.S.C. 823(f), ``[t]he Attorney General shall 
register practitioners . . . to dispense, or conduct research with, 
controlled substances in schedule II, III, IV, or V . . . if the 
applicant is authorized to dispense, or conduct research with respect 
to, controlled substances under the laws of the State in which he 
practices.'' See also 21 U.S.C. 802(21) (``The term `practitioner' 
means a physician, dentist, veterinarian, scientific investigator . . . 
or other person licensed, registered, or otherwise permitted, by the 
United States or the jurisdiction in which he practices or does 
research, to distribute, dispense, conduct research with respect to, 
administer, or use in teaching or chemical analysis, a controlled 
substance in the course of professional practice or research.''); id. 
Sec.  824(a)(3) (authorizing the suspension or revocation of a 
registration ``upon a finding that the registrant . . . has had his 
State license or registration suspended, revoked, or denied by 
competent State authority and is no longer authorized by State law to 
engage in the manufacturing, distribution, or dispensing of controlled 
substances'').
    As explained above, the Government initially sought to deny 
Respondent's application on the ground that it did not hold authority 
under state law to engage in research with respect to controlled 
substances. However, on March 12, 2012, Respondent obtained a temporary 
Arkansas Controlled Substance Registration, which was due to expire on 
September 12, 2012. RX 19. Moreover, Respondent's state registration 
has since been extended until December 31, 2013.
    However, while the possession of state authority is an essential 
condition for obtaining a practitioner's (and researcher's) 
registration, it ```is not dispositive of the public interest 
inquiry.''' George Mathew, M.D., 75 FR 66138, 66145 (2010), pet. for 
rev. denied, Mathew v. DEA, No. 10-73480, slip op. at 5 (9th Cir., Mar. 
16, 2012); see also Patrick W. Stodola, 74 FR 20727, 20730 n.16 (2009). 
As the Agency has long held, ``the Controlled Substances Act requires 
that the Administrator . . . make an independent determination [from 
that made by state officials] as to whether the granting of controlled 
substance privileges would be in the public interest.'' Mortimer Levin, 
D.O., 57 FR 8680, 8681 (1992). Ultimately, because I conclude that 
other grounds exist to deny Respondent's application, I hold that this 
factor is not dispositive and give it nominal weight in the public 
interest analysis.\20\
---------------------------------------------------------------------------

    \20\ As for factor three, there is no evidence that Respondent 
has been convicted of an offense ``relating to the manufacture, 
distribution or dispensing of controlled substances.'' 21 U.S.C. 
823(f)(3). However, there are a number of reasons why even a person 
who has engaged in misconduct may never have been convicted of an 
offense under this factor, let alone prosecuted for one. Dewey C. 
MacKay, 75 FR 49956, 49973 (2010), pet. for rev. denied, MacKay v. 
DEA, 664 F.3d 808 (10th Cir. 2011). The Agency has therefore held 
that ``the absence of such a conviction is of considerably less 
consequence in the public interest inquiry'' and is therefore not 
dispositive. Id.
---------------------------------------------------------------------------

Factors Two and Four--The Applicant's Experience in Dispensing, or 
Conducting Research with Respect to Controlled Substances and The 
Applicant's Compliance with Applicable Laws Related to Controlled 
Substances

    As found above, it is undisputed that Ms. Moore was previously 
employed as

[[Page 40155]]

a Respiratory Therapist and as a Clinical Research Coordinator. As the 
ALJ found with respect to Ms. Moore's employment as a Respiratory 
Therapist, Ms. Moore had limited experience handling controlled 
substances and no experience in keeping controlled substance records. 
R.D. at 6. As for her more recent employment as a Clinical Research 
Coordinator, while Ms. Moore was involved in managing a number of 
clinical trials, none of these involved controlled substances.\21\ Id. 
at 7.
---------------------------------------------------------------------------

    \21\ I place no weight on the fact that Ms. Moore was fired by 
her previous employer or that she failed to produce letters of 
recommendation. See Gov. Br. at 24. The Government produced no 
evidence regarding the circumstances surrounding her termination. 
Nor has it cited any authority that DEA requires an applicant for a 
research registration to produce letters of recommendation.
---------------------------------------------------------------------------

    Indeed, Ms. Moore's lack of experience in research with respect to 
controlled substances was manifested throughout her testimony. For 
example, Ms. Moore denied that she understood that Respondent could not 
dispense controlled substances until it obtained a DEA registration, 
Tr. 537-38, and--as if the law isn't clear enough--did so 
notwithstanding that the Quintiles representative had advised her in 
writing that her ``site must obtain a DEA license for research with a 
controlled substance.'' RX 4. Ms. Moore also testified that she did not 
think it was illegal for Dr. Nichol to bring the controlled substances 
to Respondent's office and dispense them there. Tr. 538-39. 
Subsequently, and notwithstanding that at the very first DEA visit, the 
DIs provided Ms. Moore with a copy of the Code of Federal Regulations 
and reviewed the recordkeeping requirements found in Part 1304, Ms. 
Moore testified that she was not aware that Dr. Nichol was required to 
keep controlled substance records until the August 24, 2012 visit.\22\ 
Id. at 822-23.
---------------------------------------------------------------------------

    \22\ The Government also argues that ``Dr. Nichol's past 
experience with controlled substances does not qualify him . . . to 
handle controlled substances.'' Gov. Br. 24. As support for this 
assertion, the Government cites Dr. Nichol's state board suspension 
and his exclusion from participation in federal health care 
programs. Id. The Government does not explain why it nonetheless 
entered into an MOA with Dr. Nichol, pursuant to which it allowed 
him to keep his registration and did so even after it became aware 
that he was transporting controlled substances to Respondent's 
office and dispensing them. I thus reject its contention.
---------------------------------------------------------------------------

    Later, when asked if the dispensing record was required to include 
the location of where the controlled substances were dispensed from, 
Ms. Moore testified that she does not ``know what is required, but as a 
compliant person, I'm more than happy to learn what is required as a 
DEA registrant, because I am prepared to do whatever needs to be done. 
. . . So after I learn what is required . . . I'm fully prepared to be 
compliant.'' Id. at 584. Thus, while there is some evidence to support 
Ms. Moore's contention that she is prepared to be compliant (e.g., her 
installation of the alarm, provision of information to the DIs, and 
attempts to create compliant records), it is shocking that even at the 
time of the hearing, Ms. Moore still lacked knowledge of several of the 
fundamental requirements imposed by the CSA and Agency regulations.
    For example, regarding Dr. Nichol's dispensings at Respondent's 
office, the CSA provides that ``[a] separate registration shall be 
required at each principal place of business or professional practice 
where the applicant . . . dispenses controlled substances.'' 21 U.S.C. 
822(e). Interpreting this provision, the Fifth Circuit has held that 
``[i]f a physician intends to dispense controlled substances from a 
particular location several times a week or month, he must first file a 
separate registration for the location. This aspect of the registration 
provisions is beyond cavil.'' United States v. Clinical Leasing Serv., 
Inc., 930 F.2d 394, 395 (5th Cir. 1991) (emphasis added). See also id. 
Sec.  822(b) (``Persons registered by the Attorney General under this 
subchapter to . . . dispense controlled substances . . . are authorized 
to possess . . . or dispensed such substances . . . (including any such 
activity in the conduct of research) to the extent authorized by their 
registration and in conformity with the other provisions of this 
subchapter.) (emphasis added); see also 21 CFR 1301.12(a); Jeffery 
Becker, M.D., 77 FR72387, 72387-88 (2012).
    As for Ms. Moore's testimony that she was not aware that Dr. Nichol 
was required to keep controlled substance records until August 24, 
2012, the CSA provides that ``every registrant . . . shall . . . as 
soon . . . as such registrant first engages in the . . . dispensing of 
controlled substances . . . make a complete and accurate record of all 
stocks thereof on hand.'' 21 U.S.C. 827(a)(1). So too, the CSA requires 
that ``every registrant . . . dispensing a controlled substance . . . 
shall maintain, on a current basis, a complete and accurate record of 
each such substance . . . received, sold, delivered, or otherwise 
disposed of by him, except that this paragraph shall not require the 
maintenance of a perpetual inventory.'' Id. at Sec.  827(a)(3)(emphasis 
added).
    As the Agency has previously explained, ``the CSA creates `a closed 
regulatory system making it unlawful to manufacture, distribute, 
dispense, or possess any controlled substance except in a manner 
authorized by the [Act].' '' Daniel Koller, D.V.M., 71 FR 66975, 66981 
(2006) (quoting Gonzales v. Raich, 545 U.S. 1, 13 (2005) (citing 21 
U.S.C. 841(a)(1), 844(a))). Of particular relevance here, the Supreme 
Court has noted that `` `[t]he CSA and its implementing regulations set 
forth strict requirements regarding registration . . . and 
recordkeeping.' '' Koller, 71 FR at 66981 (quoting Raich, 545 U.S. at 
14). See also Paul H. Volkman, 73 FR 30630, 30644 (2008) 
(``Recordkeeping is one of the CSA's central features; a registrant's 
accurate and diligent adherence to this obligation is absolutely 
essential to protect against the diversion of controlled 
substances.''). In short, the requirements that a practitioner be 
registered at each principal place of professional practice where he 
dispenses controlled substances and maintain complete and accurate 
records of the controlled substances he handles are not arcane rules; 
rather, they are two of the fundamental features of the closed 
regulatory system created by the CSA. Yet Ms. Ms. Moore claimed to be 
unaware of these rules. Ms. Moore's lack of experience in conducting 
research with respect to controlled substances, when coupled with her 
lack of knowledge of these essential requirements, provides ample 
reason to conclude that her registration ``would be inconsistent with 
the public interest.'' 21 U.S.C. 823(f).\23\
---------------------------------------------------------------------------

    \23\ In assessing Respondent's experience in conducting research 
with respect to controlled substances, the ALJ found ``the fact that 
Astra Zeneca [actually, Quintiles] granted her a research project 
indicative of her documented experience at least to their 
satisfaction for purposes of this study.'' R.D. at 27. As explained 
above, the determination of whether granting a researcher's 
registration is consistent with the public interest is vested in the 
Agency (by delegation from the Attorney General) and not in 
pharmaceutical companies or CROs. Accordingly, I reject the ALJ's 
rumination as totally irrelevant.
---------------------------------------------------------------------------

    Moreover, the record clearly establishes that Dr. Nichol violated 
both the separate registration provision and DEA recordkeeping 
requirements. As for Dr. Nichol's violations of the separate 
registration provision, it is true that Ms. Moore disputed the 
testimony of the GS and another DI that during the August 24, 2012 on-
site inspection, she was asked where Dr. Nichol was dispensing the 
drugs and said they had been dispensed at Respondent's offices, and 
that Ms. Moore never claimed that Nichol had dispensed the controlled 
substances at his office. Tr. 72, 710-11. Of note, Ms. Moore 
specifically denied that she was even asked if Dr. Nichol was 
dispensing the drugs at Respondent. Tr. 535; see also id. at 726-27.

[[Page 40156]]

    While the ALJ's opinion contained inconsistent findings on the 
issue of whether Nichol was still dispensing the drugs at Respondent 
after he entered the MOA,\24\ the ALJ did find that Ms. Moore 
``vacillated in her testimony concerning where the controlled substance 
was actually dispensed,'' and most significantly, that she lacked 
candor. R.D. at 34. In any event, even accepting Ms. Moore's testimony 
that Dr. Nichol stopped dispensing at Respondent's offices following 
his entering into the MOA, I would still conclude that Nichol violated 
the separate registration provision by dispensing controlled substances 
at Respondent.\25\ In short, the evidence shows that Dr. Nichol made 
the dispensings on a regular and non-random basis, even if he did so 
only a few times a month. See Jeffery J. Becker, D.D.S., 77 FR 72387, 
72388 (2012). Indeed, for purposes of Dr. Nichol's activities as a 
researcher, Respondent's office was in every sense an `` `important or 
consequential' '' place of professional practice. Clinical Leasing 
Serv., 930 F.2d at 395; see also id. (``If a physician intends to 
dispense controlled substances from a particular location several times 
a week or month, he must first file a separate registration for the 
location.'').
---------------------------------------------------------------------------

    \24\ More specifically, the ALJ found that the GS had spoken 
with the John Wegner, a Quintiles representative and ``confirmed 
that the controlled substance was being dispensed from MCT. The drug 
was being ordered by Dr. Nichol, sent to his office location, and 
transported to MCT for dispensing. This procedure was ongoing from 
at least April of 2012.'' R.D. at 10 (citing Tr. 61-64) (emphasis 
added and citations omitted). As found above, the record indicates 
that while the GS spoke with Mr. Wegner in July 2012 and was told 
that Dr. Nichol was taking the drugs to Respondent, where they were 
dispensed, she then contacted Dr. Nichol's attorney, who confirmed 
that his client had been doing this ``[a]t least since April of 
2012.'' Id. at 64.
     Yet later in the R.D., the ALJ found that ``[a]t some 
unspecified time in 2012, Ms. Moore became aware that Dr. Nichol's 
relationship with the DEA had changed. She understood that Dr. 
Nichol could no longer dispense controlled substances from the 
Respondent's location. Thereafter, patients were dispensed 
controlled substances from Dr. Nichol's office.'' R.D. at 16 (citing 
Tr. 497-98; 531-35, 631). However, the evidence shows that Nichol 
did not enter into the MOA until the middle of April 2012. RX 22, at 
4.
    \25\ Given the ALJ's finding that Ms. Moore vacillated in her 
testimony and lacked candor on the issue of where the dispensings 
occurred, as ultimate factfinder I give no weight to her testimony 
that even before Nichol entered into the MOA, he made some of the 
dispensings at his office. Indeed, the Clinical Trial Agreement 
expressly required that the ``Institution, Investigator and their 
personnel shall perform the Study at Institution's facility.'' RX 
14, at 2 (emphasis added).
---------------------------------------------------------------------------

    Moreover, while Ms. Moore maintained that if she is granted a 
registration, the physicians Respondent contracts with will be 
responsible for the dispensing and recordkeeping of the controlled 
substances, as the ALJ recognized, under federal law, if controlled 
substances were dispensed at Respondent's office, it was responsible 
for maintaining complete and accurate records. United States v. 
Clinical Leasing Serv., Inc., 759 F. Supp. 310, 313 (E.D. La. 1990), 
aff'd 925 F.2d 120, 123 (5th Cir. 1991). As the court explained:

    The clinic is charged with failure to maintain proper records. 
The law clearly requires every ``person'' (including a corporation) 
to maintain proper records if that person dispenses controlled 
substances. By employing physicians to dispense drugs in connection 
with its operation, the clinic is a dispenser of controlled 
substances. Therefore, the clinic, as well as the physicians it 
employs, must maintain the proper records required by law.

759 F. Supp. at 312 (emphasis added).

    The court expressly rejected the clinic's contention that ``it was 
not required to maintain records,'' because ``the record keeping 
requirements pertain only to `registrants,' '' noting that 21 U.S.C. 
842(a)(5) ``does not require that one who refuses or fails to make, 
keep, or furnish records be a `registrant,' '' but applies to ``any 
person,'' including `` `an individual, corporation . . . business 
trust, partnership, association, or other legal entity.' '' Id. at 313 
(quoting 21 CFR 1301.02(j)). Multiple federal courts have likewise 
rejected the contention that the CSA's recordkeeping requirements do 
not apply to non-registrant owners of clinics which dispense controlled 
substances. See United States v. Robinson, 2012 WL 3984786, *6-7 (S.D. 
Fla., Sept. 11, 2012) (holding non-registrant owner of cosmetic surgery 
clinic liable for recordkeeping violations under section 842(a)(5); 
statute ``includes the broader term of `any person' and does not limit 
application of the subsection to registrants''); United States v. 
Stidham, 938 F.Supp. 808, 813-15 (S.D. Ala. 1996) (holding non-
registrant owner of methadone clinic liable for recordkeeping 
violations); United States v. Poulin, 926 F.Supp. 246, 250-51 (D. Mass. 
1996) (``The recordkeeping provisions of the [CSA] apply to all persons 
who dispense drugs, even if they have not registered as required under 
the Act'' and holding both pharmacy's owner/proprietor and corporate 
entity liable for recordkeeping violations); see also 21 U.S.C. 
842(a)(5).
    Of note, the GS testified that during the August 24, 2012 
inspection of Respondent's new office, she examined the Schedule II 
order forms and noted that they had not been completed by indicating 
the date the drugs were received and the quantity received. Tr. 78; see 
also 21 CFR 1305.13(e). The evidence also shows that in response to the 
GS's request (through Dr. Nichol's attorney) for Dr. Nichol's 
dispensing records, Nichol provided the GS with the records found in 
Government Exhibit 14. Tr. 75.
    Notably, it is undisputed that the dispensing record for each 
study--which Dr. Nichol provided--was not created until August 27, 
2012, well after all of the dispensings were made. See GX 14, at 5-7 
(Kodiac 8); id. at 14-20 (Kodiac 5). The CSA requires, however, that a 
dispensing record be ``maintain[ed], on a current basis.'' 21 U.S.C. 
827(a)(3). Thus, the records presented to the GS by Dr. Nichol clearly 
did not comply with federal law.
    As for whether Ms. Moore was maintaining the records which complied 
with the CSA, the ALJ's decision again contains several inconsistent 
findings and conclusions. For example, the ALJ found that ``it is 
unknown whether Ms. Moore's sponsor-required records would satisfy the 
DEA's recordkeeping requirements, since neither party made them 
exhibits in this matter.'' R.D. 20; see also id. at 32 (``Evidence of 
Ms. Moore's Sponsor Records was not entered into this record.''). 
However, Ms. Moore testified that the NKTR-118 Accountability Forms, 
which were introduced into the record at RXs 23 and 24, were ``my 
sponsor's record[s].'' Tr. 811; see also id. at 813-23 (discussing 
notations in records made by the sponsor's representative or CRA).
    The ALJ nonetheless concluded that because ``[e]vidence of Ms. 
Moore's Sponsor records was not entered into this record . . . the 
Government has failed to prove by a preponderance of the evidence that 
the Respondent's records are deficient.'' R.D. at 33. Yet the ALJ then 
explained that ``[a]lthough Respondent has failed to maintain its own 
recordkeeping system, it cannot be held responsible for all of the 
noncompliant actions of Dr. Nichol.'' Id. (emphasis added). And later, 
the ALJ explained that Ms. Moore ``clearly lacks experience in handling 
controlled substances, for she has not prepared the paperwork required 
in remaining accountable for the controlled substances in Dr. Nichol's 
charge.'' R.D. at 35 (emphasis added).
    Moreover, regarding the obligation to keep records under the CSA, 
Ms. Moore testified that ``I only learned on the 24th of August 2012, 
when the DEA came into my site for onsite inspection, that there was a 
requirement to have separate books. So I wasn't keeping records for the 
DEA.'' Tr. 811. As for the sponsor record, Ms. Moore testified that she 
``was simply recording everything

[[Page 40157]]

. . . we were just to count the drug and send it away.'' Id. at 
811.\26\ Ms. Moore then reiterated that ``I was not keeping records for 
the DEA.'' Id. at 812.
---------------------------------------------------------------------------

    \26\ Notably, Respondent does not argue that Respondent's 
Exhibits 23 and 24 (the NKTR-118 Accountability Forms) comply with 
the CSA and DEA regulations, notwithstanding that they document 
various dispensings. See generally Resp. Br. Indeed, in seeking 
admission of these documents, Respondent's counsel represented to 
the ALJ that they were offered ``for a very limited purpose, only 
with regard to the date of [the] last dispensal'' [sic] and that 
``[w]e do not offer them for anything else with regard to the 
dispensal [sic] records.'' Tr. 750. The ALJ thus admitted these 
records--over the Government's objection--only ``for the limited 
purpose of'' showing the dates of the last dispensings. Id.
     In any event, the records support the conclusion that 
Respondent failed to comply with federal recordkeeping obligations. 
Indeed, a review of these records shows that multiple entries are 
not in chronological order, thus indicating that these logs were not 
maintained on a current basis as required by federal law, but were 
created after the fact. See RX 24, at 3 (listing entries dated in 
following order: 25 Oct. 2011, 09 Nov. 2011, 15 Sep. 2011, 26 Sep. 
2011, 22 Nov. 2011, 20 Dec. 2011); id. at 5-6 (single entry 
containing crossed-out date of 18 Aug., and two dates of 18 July 
2012 and 15 Aug 2012). See also RX 23, at 11-13 (listing more dates 
of dispensings which are not in chronological order).
---------------------------------------------------------------------------

    Accordingly, I find that substantial evidence supports the 
conclusion that neither Dr. Nichol nor Respondent was maintaining 
dispensing records for the two studies which complied with federal 
law.\27\ And because federal law requires that both the physician and 
the clinic are required to maintain records, see Clinical Leasing, 759 
F. Supp. at 312; I conclude that Respondent violated federal law when 
it failed to maintain on a current basis, complete and accurate records 
of its dispensings of controlled substances. I thus reject the ALJ's 
conclusion that ``the Government has not cited to any regulatory or 
statutory provision resulting in a finding of wrongdoing done by the 
Respondent'' other than the violation which Ms. Moore committed when 
she accepted a shipment of controlled substances.\28\ R.D. at 35; see 
also GX 14, at 13 (receipt for shipment of drugs signed by Ms. Moore on 
July 31, 2012).
---------------------------------------------------------------------------

    \27\ In its post-hearing brief, the Government makes extensive 
arguments, based largely on the GS's audit, that the dispensing 
records Ms. Moore created were inaccurate. Gov. Br. 28-32. However, 
the Government never performed a physical count of the drugs on hand 
for the closing inventory. Instead, as found above, it based its 
closing inventory figures on records which showed inventories taken 
on various dates. GX 14, at 22. However, the GS ignored that these 
records (MCT Form 1) were not perpetual inventories. Thus, the GS 
simply added any quantities received in a new shipment to the 
previous balance, ignoring that the last count was dated weeks 
earlier and that dispensings had been ongoing. Tr. 90, 133. The GS 
also treated the last entry on each form as if it was a new shipment 
(adding it to the previous figure) when the forms indicated that the 
quantities were of the drugs that were ``unused/returned'' and 
``kits remaining unused.'' Id. at 133. Moreover, the GS acknowledged 
that she did not ask either Dr. Nichol or Ms. Moore to explain what 
these entries showed. Id. at 134-35. As for the GS's testimony that 
she was simply following Ms. Moore's methodology, the GS never asked 
Ms. Moore to explain her methodology. Id.
     Accordingly, I find the Government's contention not proved.
    \28\ As relevant here, under the CSA, it is ``unlawful for any 
person knowingly or intentionally to possess a controlled substance 
. . . except as otherwise authorized by this subchapter.'' 21 U.S.C. 
844(a); see also id. Sec.  822(b) (``Persons registered by the 
Attorney General under this subchapter to . . . distribute, or 
dispense controlled substances . . . are authorized to possess . . . 
distribute, or dispense such substances . . . to the extent 
authorized by their registration and in conformity with the other 
provisions of this subchapter.'').
---------------------------------------------------------------------------

    The ALJ also declined to impute Dr. Nichol's violations of the 
separate registration provision to Respondent, reasoning that under 
Arkansas law, an employer is not responsible for the acts of its 
independent contractor. R.D. at 30. As support for her conclusion, the 
ALJ noted that Dr. Nichol's contract with Respondent stated that he was 
an independent contractor and not an employee. Id. at 31 (citing RX 16, 
at 6). The ALJ then explained:

Ms. Moore testified that her vision of the Respondent's business is 
to provide site resources for the doctor who is conducting the 
research. Respondent's business is not meant to exercise control 
over the doctor's medical judgment nor is the Respondent meant to be 
primarily responsible for the research and recordkeeping. 
Additionally, the Respondent does not even pay Dr. Nichol for his 
services in conducting research at Respondent's place of business, 
but, rather, Dr. Nichol's payment is a `pass-through' system of 
payment in which the Respondent pays Dr. Nichol once the Respondent 
receives funds from the Sponsoring Organization. Simply put, Dr. 
Nichol is not an employee or an agent of the Respondent because the 
Respondent does not exercise any control over Dr. Nichol's work; 
rather, the Respondent only offers Dr. Nichol a facility in which to 
conduct research.

R.D. at 31-32 (citing Tr. 381, 383-85; RX 16).

    Not only is the ALJ's reasoning counterfactual, it reflects a 
stunning misunderstanding of the CSA. As for the ALJ's reliance on Ms. 
Moore's vision, it is beside the point.\29\ Indeed, here, the evidence 
shows that Respondent did far more than ``provide site resources for 
[a] doctor who is conducting research.'' Id. Rather, the evidence shows 
that Ms. Moore sought out, and contracted with Dr. Nichol, to perform 
clinical research for Respondent, pursuant to contracts it might obtain 
from contract research organizations, id. at 387, and that upon 
receiving information that Quintiles would be managing clinical trials 
of NKTR-118, Ms. Moore applied for Respondent to participate in the 
study. RX 3, at 1.
---------------------------------------------------------------------------

    \29\ So too, the fact that Respondent was not contractually 
required to pay Dr. Nichol until it was paid is beside the point.
---------------------------------------------------------------------------

    Moreover, upon Respondent's being approved by Quintiles, Ms. Moore 
(on behalf of Respondent) and Dr. Nichol jointly agreed with Quintiles 
to ``perform the Study at [Respondent's] facility according to the 
Protocol and th[e] [Clinical Trial] Agreement.'' RX 14, at 2. Thus, the 
evidence shows that Respondent did not simply provide a facility for 
Dr. Nichol to undertake the research. To the contrary, Ms. Moore, on 
behalf Respondent, undertook to perform the clinical trials. 
Furthermore, it is clear that there was an agreement between Ms. Moore 
and Dr. Nichol to dispense controlled substances at Respondent's 
office. See also Tr. 57 (Ms. Moore's statement during May 2011 
interview that Dr. Nichol ``would be present at the clinic [Respondent] 
three to four days a week.'').
    Notwithstanding that Dr. Nichol was an independent contractor and 
not Respondent's employee, he was still obligated to comply with the 
terms of his agreement with Respondent, which required that he ``act in 
accordance and compliance with any and all applicable Federal, State, 
and local laws, rules, regulations, guidelines, including but not 
limited to the . . . CFR . . . as amended.'' RX 16, at 4. Indeed, 
Respondent had the power to terminate the agreement ``upon the breach 
of'' the agreement by Dr. Nichol and his failure to cure the breach. 
Id. at 5. Thus, even if Respondent could not exercise control over Dr. 
Nichol's medical decisions, she still retained authority to supervise 
various other aspects of his activities and to ensure that he complied 
with the requirements of federal law, including the CSA.\30\ 
Accordingly, whether Dr. Nichol was an agent under the standards set 
forth in the Restatement of the Law (Third) Agency (2006), see R.D. at 
31, the evidence shows that he clearly acted on Respondent's behalf in 
performing the Clinical Trial Agreement and Ms. Moore clearly knew that 
Dr. Nichol was dispensing controlled substances at Respondent. See 21 
U.S.C. 802(3). Thus, Dr. Nichols' misconduct in dispensing controlled 
substances at Respondent's unregistered location is properly imputed to 
Respondent.
---------------------------------------------------------------------------

    \30\ It is not uncommon that pharmacies utilize the services of 
relief pharmacists, who are not employees, but rather independent 
contractors. Under the ALJ's theory, a pharmacy owned by a non-
pharmacist could not be held liable for violations committed by a 
relief pharmacist who is an independent contractor.
---------------------------------------------------------------------------

    Indeed, even if the evidence is not sufficient to establish the 
existence of an

[[Page 40158]]

agency relationship between Dr. Nichol and Respondent, the ALJ was 
simply mistaken in concluding that proof of an agency relationship was 
necessary to impute Nichol's misconduct to Respondent. Contrary to the 
ALJ's understanding, the CSA recognizes the principle of agency for the 
purpose of allowing ``an authorized person who acts on behalf of or at 
the direction of a manufacturer, distributor, or dispenser,'' 21 U.S.C. 
802(3), to handle controlled substances without having to be registered 
as well. See id. Sec.  822(c) (``The following persons shall not be 
required to register and may lawfully possess any controlled substance 
. . . under this subchapter: (1) An agent or employee of any registered 
manufacturer, distributor, or dispenser of any controlled substance . . 
. if such agent or employee is acting in the usual course of his 
business or employment.''). The CSA's agency provision does not, 
however, limit the liability of a person for the misconduct of another 
to the circumstance in which the latter acts as an agent of the former. 
Thus, while obviously any misconduct in handling controlled substances 
which is committed by an agent in the course of the agency is properly 
imputed to his principal, see Mediplas Innovations, 67 FR 41256 
(2002),\31\ this is not the only basis for imputing Dr. Nichol's 
violations of the separate registration requirement to Respondent and 
Ms. Moore.
---------------------------------------------------------------------------

    \31\ Citing Mediplas Innovations, 67 FR 41256 (2002) and Daniel 
Koller, D.V.M., 71 FR 66975 (2006), the ALJ explained that these 
decisions ``regarding imputing a worker's conduct to an employer 
turn on the fact that the worker was deemed an agent of the 
employer.'' R.D. at 31. The ALJ misread both cases.
    In Mediplas, the Agency held that a firm, which sought to import 
list I chemicals, was liable for the failure of its customs broker 
to timely file import notification forms (DEA--486), explaining that 
the firm had a statutory duty to file the forms and that under the 
law of agency, it was liable ``for its agent's failure to timely 
file'' the forms. 67 FR at 41262 (citing, inter alia, Restatement 
(Second) of Agency Sec. Sec.  272, 275, 277 (1958)). While the 
liability of a principal for the acts committed by an agent in the 
course of its agency is hardly disputable, Mediplas simply does not 
address whether, absent an agency or employment relationship, a 
person can be held liable under the CSA for the misconduct of 
another person, such as a co-conspirator.
    Nor does Koller support the ALJ's reasoning. Rather, Koller 
simply addressed whether a relief veterinarian, who was an 
independent contractor and not an employee of a clinic owner, could 
act as an agent of the owner and lawfully dispense controlled 
substances under the exemption from registration provided under 21 
U.S.C. 822(c). See 71 FR 66975.
---------------------------------------------------------------------------

    Significantly, Dr. Nichol's violations can be imputed to Respondent 
because Ms. Moore knowingly aided and abetted Dr. Nichol's violations. 
Cf. 18 U.S.C. 2; FDIC v. First Interstate Bank of Des Moines, N.A., 885 
F.2d 423, 431 (8th Cir. 1989) (noting that ``under the common law, 
liability is sufficiently established by an aider-abettor's knowledge 
of the wrong and its awareness of its assistance in furthering the 
scheme'') (citing Restatement (Second) of Torts Sec.  876 comment d 
(other citation omitted)). Here, in addition to the Clinical Trial 
Agreement (by which Respondent, through Ms. Moore, and Dr. Nichol 
agreed with Quintiles to ``perform the Study at [Respondent's] 
facility,'' RX 14, at 2), the evidence shows that Ms. Moore provided 
Respondent's facility to Dr. Nichol for the purpose of performing the 
clinical studies.
    Moreover, the evidence shows that Respondent did not have a 
registration to conduct research, Tr. 62, and that during the February 
15, 2011 site selection visit, Quintiles' representative informed both 
Ms. Moore and Dr. Nichol that ``[t]he site must obtain a DEA license 
for research with a controlled substance.'' RX 4, at 1; see also Tr. 
400 (testimony of Ms. Moore that sponsor told her and Nichol that 
``based on the scheduling [of NKTR-118], then the sites [sic] would 
need a DEA license''). So too, the evidence shows that Dr. Nichol was 
not registered at Respondent and Ms. Moore knew this. \32\ Tr. 487; RX 
22, at 1. Finally, the evidence further shows that Dr. Nichol proceeded 
to dispense controlled substances at Respondent's office when neither 
he, nor Respondent, held a registration at this location and did so on 
numerous occasions through at least April 2012.\33\ Thus, the evidence 
establishes that Ms. Moore and Respondent aided and abetted Dr. 
Nichol's violations of section 822(e), by allowing him to dispense at 
Respondent's office, which was not registered.
---------------------------------------------------------------------------

    \32\ Obviously, Dr. Nichol knew that he was not registered at 
Respondent.
    \33\ As for Ms. Moore's testimony that she did not think it was 
illegal for Dr. Nichol to bring the controlled substances to 
Respondent and dispense them there, this is not a mistake of fact, 
but rather, a mistake of law. As such, even if I deemed it credible, 
it offers no comfort to Respondent.
    Moreover, the record shows that at the April 2011 meeting, the 
DIs provided Ms. Moore with the Code of Federal Regulations. Among 
the regulations contained therein are 21 CFR 1301.11, which requires 
that ``[e]very person who . . . dispenses . . . any controlled 
substances or who proposes to engage in the . . . dispensing of any 
controlled substance shall obtain a registration unless exempted by 
law or'' regulation, and as well as 21 CFR 1301.12, which provides 
that ``[a] separate registration is required for each principal 
place of professional practice at one general physical location 
where controlled substances are . . . dispensed by a person.'' See 
also 21 CFR 1301.12(b)(3) (exempting from the separate registration 
requirement, ``[a]n office used by a practitioner . . . where 
controlled substances are prescribed but neither administered nor 
otherwise dispensed as a regular part of the professional practice 
of the practitioner at such office, and where no supplies of 
controlled substances are maintained.'') (emphasis added).
    As the Fifth Circuit has recognized, the statute (21 U.S.C. 
822(e)) and regulation provide fair notice such that:
    A physician of ordinary means and intelligence would understand 
that the federal registration provisions apply to each important or 
consequential place of business where the physician distributes 
controlled substances. It is sufficiently clear that the application 
of the provisions is not limited to a single important or 
consequential place of business where controlled substances are 
distributed.
    Clinical Leasing Serv., 925 F.2d at 123 (emphasis added). 
Moreover, Ms. Moore admitted that she never asked DEA whether Dr. 
Nichol could lawfully transport the controlled substances to 
Respondent and dispense them there. Tr. 538. See Clinical Leasing 
Serv., 925 F.2d at 122 (``licensing or registration requirements, 
are afforded considerable deference in the vagueness analysis 
because the regulated party may `have the ability to clarify the 
meaning of the regulation[s] by its own inquiry, or by resort to an 
administrative process''') (quoting Village of Hoffman Estates v. 
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498 (1991)).
---------------------------------------------------------------------------

    I therefore reject the ALJ's conclusion that Dr. Nichol's 
violations of section 822(e) cannot be imputed to Ms. Moore and 
Respondent.\34\ Moreover, as

[[Page 40159]]

discussed above, Ms. Moore and Respondent violated federal law by 
failing to maintain complete and accurate dispensing records. These 
findings support the conclusion that granting Respondent's application 
``would be inconsistent with the public interest.'' 21 U.S.C. 823(f).
---------------------------------------------------------------------------

    \34\ So too, liability can be imputed based on proof that a 
conspiracy existed, even where the conspiracy had a lawful objective 
but was carried out through unlawful means. See 21 U.S.C. 846 (``Any 
person who . . . conspires to commit any offense defined in this 
subchapter [i.e., the CSA] shall be subject to the same penalties as 
those prescribed for the offense, the commission of which was the 
object of the . . . conspiracy.'').
    To establish the existence of a conspiracy, the Government 
``must prove there was a conspiracy with an illegal purpose, that 
the defendant was aware of the conspiracy, and that [s]he knowingly 
became a part of it. Moreover, there must be evidence that the 
defendant entered into an agreement with at least one other person 
and that the agreement had as its objective a violation of law.'' 
United States v. Fitz, 317 F.3d 878, 881 (8th Cir. 2003) (citations 
omitted). Proof of the existence of an agreement ```does not require 
evidence of a formal or express agreement''' but only evidence 
```that the parties have a tacit understanding to carry out the 
prohibited conduct.''' United States v. Nusraty, 867 F.2d 759, 763 
(2d Cir. 1989) (quoting United States v. Rubin, 844 F.2d 979, 984 
(2d Cir. 1988)) (other citation omitted).
    However, because the act of entering into a conspiracy is itself 
an actionable offense, the Government was required to allege this in 
either the Show Cause Order or its Pre-Hearing Statements. I 
therefore do not rely on this theory.
    By contrast, the aiding and abetting statute does not create a 
separate offense, but simply ``abolishes the distinction between 
common law notions of `principal' and `accessory.''' United States 
v. Kegler, 724 F.2d 190, 200 (D.C. Cir. 1983). Accordingly, in a 
criminal prosecution, ``[a]iding and abetting . . . need not be 
alleged in the indictment.'' United States v. Alexander, 447 F.3d 
1290, 1298 (10th Cir. 2006). See also United States v. Good Shield, 
544 F.2d 900, 952 (8th Cir. 1976) (``Aiders and abettors and those 
causing an act to be done are punishable as principals. The 
indictment may charge a defendant as a principal, and need not 
specifically allege that he aided and abetted in the commission of 
the crime.'').
    Of significance here, `````[p]leadings in administrative 
proceedings are not judged by the standards applied to an indictment 
at common law.''''' Citizens States Bank of Marshfield v. FDIC, 751 
F.2d 209, 213 (8th Cir. 1984) (quoting Aloha Airlines v. Civil 
Aeronautics Bd., 598 F.2d 250, 262 (D.C. Cir. 1979)) (quoted in 
George Mathew, M.D., 75 FR 66138, 66146 n.20 (2010)). ``An agency is 
not required ``to give every [Respondent] a complete bill of 
particulars as to every allegation that [he] will confront.''' 
Boston Carrier, Inc., v. ICC, 746 F.2d 1555, 1560 (D.C. Cir. 1984) 
(quoted in Mathew, 75 FR at 66146 n.20). ``Thus, the failure of the 
Government to disclose an allegation in the Order to Show Cause is 
not dispositive, and an issue can be litigated if the Government 
otherwise timely notifies a respondent of its intent to litigate the 
issue.'' Mathew, 75 FR at 66146 n.20. See also Darrell Risner, 
D.M.D., 61 FR 728, 730 (1996) (``the parameters of the hearing are 
determined by the prehearing statements''); accord Nicholas A. 
Sychak, 65 FR 75959, 75961 (2000).
    Here, the Government provided adequate notice that it intended 
to litigate the issue of Dr. Nichol's transporting controlled 
substances to Respondent's office to dispense them there and that 
this was illegal because he was not registered at that location. See 
Gov. Second Supplemental Prehearing Statement, at 1-2. More 
specifically, the Government disclosed that it intended to sponsor 
testimony from the GS that she was told by a Quintiles employee that 
``the MCT study situation was unique in that they had to send the 
drugs to Dr. Nichol who then transported them to MCT to dispense.'' 
Id. at 1. The Government further disclosed that the GS would testify 
that she contacted Dr. Nichol's attorney and ``informed him of the 
problems with transporting and dispensing drug from an unregistered 
location and that it was not legal to do so unless the location was 
registered'' and that ``Dr. Nichol needed to be registered at the 
MCT location if he wished to dispense there.'' Id. The Government 
then disclosed that the GS would testify that on August 22, 2012, 
she received a letter from Dr. Nichol's attorney which ``assured her 
that Dr. Nichol would administer the controlled substances for 
research at his DEA approved address.'' Id. at 2.
     Finally, the Government disclosed that the GS would testify 
that during the August 24, 2012 meeting with Ms. Moore, the latter 
``admitted that Dr. Nichol was dispensing [NKTR-118] from MCT both 
at the new and old locations for MCT.'' Id. I thus conclude that 
Respondent had adequate notice that the issue would be litigated.
---------------------------------------------------------------------------

Sanction

    Under Agency precedent, where, as here, ``the Government has proved 
that [an applicant] has committed acts inconsistent with the public 
interest, [the applicant] must ` ``present sufficient mitigating 
evidence to assure the Administrator that it can be entrusted with the 
responsibility carried by such a registration.'' ' '' Medicine Shoppe-
Jonesborough, 73 FR 364, 387 (2008) (quoting Samuel S. Jackson, 72 FR 
23848, 23853 (2007) (quoting Leo R. Miller, 53 FR 21931, 21932 
(1988))). ``Moreover, because `past performance is the best predictor 
of future performance,' ALRA Labs, Inc. v. DEA, 54 F.3d 450, 452 (7th 
Cir. 1995), [DEA] has repeatedly held that where [an applicant] has 
committed acts inconsistent with the public interest, the registrant 
must accept responsibility for its actions and demonstrate that it will 
not engage in future misconduct.'' Medicine Shoppe, 73 FR at 387; see 
also Jackson, 72 FR at 23853; John H. Kennedy, 71 FR 35705, 35709 
(2006); Prince George Daniels, 60 FR 62884, 62887 (1995). See also 
Hoxie v. DEA, 419 F.3d at 483 (``admitting fault'' is ``properly 
consider[ed]'' by DEA to be an ``important factor[]'' in the public 
interest determination). So too, in making the public interest 
determination, ``this Agency also places great weight on an 
[applicant's] candor, both during an investigation and in [a] 
subsequent proceeding.'' Robert F. Hunt, 75 FR 49995, 50004 (2010) 
(citing The Lawsons, Inc., t/a The Medicine Shoppe Pharmacy, 72 FR 
74334, 74338 (2007) quoting Hoxie, 419 F.3d at 483 (``Candor during DEA 
investigations properly is considered by the DEA to be an important 
factor when assessing whether a . . . registration is consistent with 
the public interest.'')).
    While an applicant must accept responsibility and demonstrate that 
it will not engage in future misconduct in order to establish that 
granting its application is consistent with the public interest, DEA 
has repeatedly held these are not the only factors that are relevant in 
determining the appropriate sanction. See, e.g., Joseph Gaudio, 74 FR 
10083, 10094 (2009); Southwood Pharmaceuticals, Inc., 72 FR 36487, 
36504 (2007). Obviously, the egregiousness and extent of a registrant's 
misconduct are significant factors in determining the appropriate 
sanction. See Jacobo Dreszer, 76 FR 19386, 19387-88 (2011) (explaining 
that a respondent can ``argue that even though the Government has made 
out a prima facie case, his conduct was not so egregious as to warrant 
revocation''); Paul H. Volkman, 73 FR 30630, 30644 (2008); see also 
Gregory D. Owens, 74 FR 36751, 36757 n.22 (2009).
    Moreover, as I have noted in several cases, `` `[n]either Jackson, 
nor any other agency decision, holds . . . that the Agency cannot 
consider the deterrent value of a sanction in deciding whether a 
registration should be [suspended or] revoked.' '' Gaudio, 74 FR at 
10094 (quoting Southwood, 72 FR at 36503 (2007)); see also Robert 
Raymond Reppy, 76 FR 61154, 61158 (2011); Michael S. Moore, 76 FR 
45867, 45868 (2011). This is so, both with respect to the respondent in 
a particular case and the community of registrants. See Gaudio, 74 FR 
at 10095 (quoting Southwood, 71 FR at 36504). Cf. McCarthy v. SEC, 406 
F.3d 179, 188-89 (2d Cir. 2005) (upholding SEC's express adoption of 
``deterrence, both specific and general, as a component in analyzing 
the remedial efficacy of sanctions'').
    The ALJ reasoned that while ``[t]he record is filled with 
wrongdoing done by Dr. Nichol . . . his wrongdoing is not imputed to 
Respondent'' and that the only violation Respondent ``had . . . to be 
remorseful about,'' was Ms. Moore's act of signing for, and taking 
possession of, the July 31, 2012 shipment of controlled substances. 
R.D. at 35. While acknowledging that ``Ms. Moore did not express any 
remorse for this wrongdoing,'' the ALJ concluded that ``this one 
incident is [not] enough to deny the Respondent a DEA registration.'' 
Id.
    As explained above, the ALJ's conclusion rests upon the erroneous 
premise that Ms. Moore is only responsible for her act of taking 
possession of a shipment of controlled substances. Rather, the evidence 
shows that Ms. Moore aided and abetted Dr. Nichol's violations of the 
CSA by dispensing controlled substance at an unregistered location. See 
21 U.S.C. 822(e), 841(a)(1), 846. As explained above, this misconduct 
constitutes a violation of one of the CSA's core provisions.
    Yet Ms. Moore utterly failed to acknowledge her misconduct, 
insisting that she did not understand that: (1) Respondent could not 
dispense controlled substances without first obtaining a DEA 
registration, Tr. 537, 539; and (2) it was illegal for Dr. Nichol to 
dispense controlled substances at Respondent. Id. at 539. Not only is 
Ms. Moore's ignorance of the law no excuse, see Sigrid Sanchez, M.D., 
78 FR 3933, 39336 (2013); her assertions are extraordinary when 
considered in light of the facts that: (1) She was explicitly told by 
the Quintiles representative that Respondent must obtain a DEA license, 
RX 4; (2) she was provided with a copy of the Code of Federal 
Regulations, Tr. 274; and (3) she admitted that she never asked DEA 
Investigators if Dr. Nichol could lawfully transport the drugs to 
Respondent and dispense them there. Id. at 538.
    Ms. Moore also failed to accept responsibility for Respondent's 
recordkeeping violations. Ms. Moore did not address at all the failure 
to properly annotate the Schedule II order forms with the date of 
receipt and quantity of drugs received. Moreover, while both

[[Page 40160]]

Respondent and Dr. Nichol failed to maintain dispensing records on a 
current basis, see 21 U.S.C. 827(a)(3); 21 CFR 1304.21(a), Ms. Moore 
asserted that she was not aware that Dr. Nichol was required to keep 
controlled substances records for the studies until August 24, 2012. 
Tr. 822-23. As for Respondent's failure to keep records, Ms. Moore 
asserted that ``[n]owhere in keeping records was there ever any 
indication, until [the GS] came to my site, that we were to keep two 
sets of books. I never heard that, but I'm not a registrant, so maybe 
if I were, I would have heard it and known that.'' Id. at 565.
    However, as stated above, during the April 2011 on-site inspection, 
Ms. Moore was provided with the Code of Federal Regulations. Tr. 274. 
And during the visit, one of the DIs explained the recordkeeping 
requirements to Ms. Moore. Id. Regardless of whether Ms. Moore was 
required to keep two sets of books, Respondent was obligated to 
maintain current records of the controlled substances that were 
received and dispensed by Respondent and Dr. Nichol. Here again, Ms. 
Moore's testimony manifests that she does not accept responsibility for 
the failure of Respondent and Dr. Nichol to keep records that complied 
with the CSA. Indeed, Ms. Moore's testimony is all the more remarkable 
in light of the fact that it occurred at a hearing at which the issue 
was whether her entity should be granted a registration. Cf. 4 OTC, 
Inc., 77 FR 35031, 35035 (2012) (``it is not too much to expect that an 
applicant seeking to show its intent to comply with applicable state 
laws, would produce [Standard Operating Procedures] which were not 
riddled with misstatements of those laws and which correctly reflected 
those States where its proposed method of operations would be 
unlawful'').
    I therefore hold that Ms. Moore has failed to accept responsibility 
for her (and Respondent's) misconduct. See Jeffery P. Gunderson, 61 FR 
62884, 62887 (1996). While there is no evidence that any of the drugs 
that were dispensed in the NKTR-118 study were diverted, both the 
registration and recordkeeping violations involve core provisions of 
the CSA. Moreover, Respondent's violations of the registration 
requirements were clearly intentional. Accordingly, Ms. Moore's failure 
to acknowledge her wrongdoing provides ample reason to reject 
Respondent's application. This conclusion is buttressed by the ALJ's 
finding that Ms. Moore lacked candor when she testified ``concerning 
where the controlled substance was actually dispensed.'' R.D. at 34 
(citing Jeri Hassman, M.D., 75 FR 8,194, 8236 (2010), pet. for rev. 
denied, Hassman v. Office of the Deputy Administrator, No. 10-70684 
(9th Cir., Apr. 9, 2013)).
    To be sure, Ms. Moore put on some evidence of her willingness to 
comply with the CSA and Agency regulations, including her installation 
of the alarm, her timely provision of information to investigators, and 
her efforts to create compliant records. However, where, as here, the 
evidence shows that an applicant has engaged in knowing or intentional 
misconduct, Agency precedent has long held that the acknowledgement of 
such misconduct is an essential element of rebutting the Government's 
prima facie case. See Hoxie v. DEA, 419 F.3d at 483; see also Medicine 
Shoppe, 73 FR at 387; Kennedy, 71 FR at 35709; Daniels, 60 FR at 62887. 
And in any event, the weight to be given Ms. Moore's evidence of her 
willingness to comply is greatly diminished by her aiding and abetting 
Dr. Nichol's violations of federal law when he dispensed at an 
unregistered location. Moreover, Ms. Moore's testimony shows that she 
still does not understand the scope of the recordkeeping obligations of 
a DEA registrant.
    Accordingly, I conclude that Respondent's application should be 
denied.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 28 
CFR 0.100(b), I order that the application of Moore Clinical Trials, 
L.L.C., for a DEA Certificate of Registration as a Researcher, be, and 
it hereby is, denied. This Order is effective immediately.

    Dated: July 2, 2014.
Michele M. Leonhart,
Administrator.
[FR Doc. 2014-16162 Filed 7-10-14; 8:45 am]
BILLING CODE 4410-09-P