On August 29, 2024, the Drug Enforcement Administration (DEA or Government) issued two Orders to Show Cause (OSCs) to Henry Emery, M.D. (Registrant). Request for Final Agency Action (RFAA), Exhibit (RFAAX) A, at 1, 3; RFAAX B, at 1, 8. The first OSC proposed the revocation of Registrant's DEA registration, No. FE7195452, in the state of South Carolina, alleging that Registrant is “currently without authority to handle controlled substances in South Carolina, the state in which [he is] registered with DEA.” RFAAX A, at 2 (citing 21 U.S.C. 824(a)(3)).

The second OSC proposed the revocation of Registrant's DEA registration, No. BE7654127, in the state of North Carolina, alleging two grounds: (1) that Registrant is “currently without authority to handle controlled substances in the State of North Carolina,” RFAAX B, at 3 (citing 21 U.S.C. 824(a)(3)); and (2) that Registrant's registration is inconsistent with the public interest. RFAAX B, at 3 (citing 21 U.S.C. 823(g)(1)(B), (D), 824(a)(4)). More specifically, the second OSC alleged that Registrant issued controlled substance prescriptions to five patients “outside the usual course of professional practice and not for a legitimate medical purpose,” in violation of federal law. Id.

On October 28, 2024, the Government submitted an RFAA requesting that the Agency issue a default final order revoking Registrant's registrations. RFAA, at 3.^[1] After carefully reviewing the entire record and conducting the analysis as set forth in more detail below, the Agency grants the Government's request for final agency action and revokes Registrant's registrations in South Carolina and North Carolina.

I. Default Determination

Under 21 CFR 1301.43, a registrant entitled to a hearing who fails to file a timely hearing request “within 30 days after the date of receipt of the [OSC] . . . shall be deemed to have waived their right to a hearing and to be in default” unless “good cause” is established for the failure. 21 CFR 1301.43(a) and (c)(1). A registrant who has requested a hearing but who fails to timely file an answer also is “deemed to have waived their right to a hearing and to be in default.” 21 CFR 1301.43(c)(2). Unless excused, a default is deemed to constitute “an admission of the factual allegations of the [OSC].” 21 CFR 1301.43(e).

Here, the OSCs notified Registrant of his right to file a written request for a hearing, and that if he failed to file such a request, he would be deemed to have waived his right to a hearing and be in default.^[2] RFAAX A, at 2 (citing 21 CFR 1301.43); RFAAX B, at 7 (same). Registrant timely requested a hearing and filed a purported answer to both OSCs on October 11, 2024. RFAAX D, at 1 and n.1. The same day, DEA ( printed page 46928) Administrative Law Judge Paul Soeffing (ALJ) issued an order finding that Registrant's answer did not comply with DEA's regulations and requesting a revised answer from Registrant. Id. at 1-2 (citing 21 CFR 1301.37(d)(3)). However, Registrant did not respond. The ALJ made a second futile attempt to bring Registrant into compliance. RFAAX E, at 1-2. Ultimately, on October 24, 2024, the ALJ terminated the proceedings, finding that Registrant had “waived his right to a hearing and is in default.” RFAAX F, at 2 (citing 21 CFR 1301.43(c)(2)).

The Agency agrees with the ALJ and finds that Registrant's purported answer did not comply with DEA's regulations, see21 CFR 1301.37(d)(3), and that Registrant's failure to file an amended answer after being provided two opportunities to do so constitutes a waiver of his right to a hearing. “Under Agency precedent, the failure to comply with an ALJ's orders may constitute a waiver of a hearing request and cause for termination of the proceeding.” Robert M. Brodkin, D.P.M.,77 FR 73678, 73679 (2012); see also Robert L. Carter, D.D.S.,90 FR 9631, 9632 (2025) (upholding ALJ's sanction terminating a hearing request as a result of noncompliance to ALJ orders); David H. Betat, M.D.,87 FR 21175, 21180 (2022) (upholding ALJ's finding of hearing waiver for failure to file a response to an ALJ order); Kamir Garces-Mejias, M.D.,72 FR 54931, 54931-32 (2007) (same); Andrew Desonia, M.D.,72 FR 54293, 54294 (2007) (same); Brenton D. Glisson, M.D.,72 FR 54296, 54296 (2007) (same); Alan R. Schankman, M.D.,63 FR 45260, 45260 (1998) (same). Accordingly, the Agency finds that Registrant is in default and therefore has admitted to the factual allegations in the OSCs. 21 CFR 1301.43(e).

II. Loss of State Authority

A. Findings of Fact

Registrant is deemed to admit that his South Carolina medical license was temporarily suspended by the South Carolina Board of Medical Examiners on March 14, 2024. RFAAX A, at 2. According to South Carolina online records, of which the Agency takes official notice,^[3] Registrant's South Carolina medical license has a status of “Suspended.” South Carolina LLR Search, https://verify.llronline.com/​LicLookup/​Med/​Med.aspx?​div=​16&​AspxAutoDetectCookieSupport=​1 (last visited date of signature on this Order). Accordingly, the Agency finds that Registrant is not licensed to practice medicine in South Carolina, a state in which he is registered with DEA.^[4]

Registrant is also deemed to admit that he entered into an Interim Non-Practice Agreement with the North Carolina Medical Board on December 27, 2023, agreeing to “not practice medicine until such a time as [Registrant] is given permission to do so by the Board President.” RFAAX B, at 3. There is no evidence that Registrant has been given permission to resume the practice of medicine in North Carolina or that the Non-Practice Agreement has been superseded. ⁵ See infra Section II.B.2. Accordingly, the Agency finds that Registrant is not authorized to practice medicine in North Carolina, a state in which he is registered with DEA.

B. Discussion

Pursuant to 21 U.S.C. 824(a)(3), the Agency may suspend or revoke a registration issued under 21 U.S.C. 823 “upon a finding that the registrant . . . has had his State license or registration suspended . . . [or] revoked . . . by competent State authority and is no longer authorized by State law to engage in the . . . dispensing of controlled substances.” With respect to a practitioner, the Agency has also long held that the possession of authority to dispense controlled substances under the laws of the state in which a practitioner engages in professional practice is a fundamental condition for obtaining and maintaining a practitioner's registration. Gonzales v. Oregon, 546 U.S. 243, 270 (2006) (“The [Agency] can register a physician to dispense controlled substances `if the applicant is authorized to dispense . . . controlled substances under the laws of the State in which he practices.' . . . The very definition of a `practitioner' eligible to prescribe includes physicians `licensed, registered, or otherwise permitted, by the United States or the jurisdiction in which he practices' to dispense controlled substances. [21 U.S.C.] 802(21).”). The Agency has applied these principles consistently. See, e.g., James L. Hooper, M.D.,76 FR 71371, 71372 (2011), pet. for rev. denied, 481 F. App'x 826 (4th Cir. 2012); Frederick Marsh Blanton, M.D.,43 FR 27616, 27617 (1978).^[6]

1. South Carolina Analysis

According to South Carolina statute, “[e]very person who manufactures, distributes, or dispenses any controlled substance or who proposes to engage in the manufacture, distribution, or dispensing of any controlled substance, shall obtain a registration issued by the Department [of Health and Environmental Control] in accordance with its rules and regulations.” S.C. Code § 44-53-290(a) (2025). To “dispense” means “to deliver a controlled substance to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the prescribing, administering, packaging, labeling, or compounding necessary to prepare the substance for the delivery.” Id. at § 44-53-110(15). Further, a “practitioner” is “a physician ( printed page 46929) . . . or other person licensed, registered, or otherwise permitted to distribute, dispense, conduct research with respect to, or to administer a controlled substance in the course of professional practice or research in this State.” Id. at § 44-53-110(36)(a).

Here, the undisputed evidence in the record is that Registrant currently lacks authority to dispense controlled substances in South Carolina because his South Carolina medical license has been suspended. As discussed above, a physician must be a licensed practitioner to dispense a controlled substance in South Carolina. Thus, because Registrant lacks authority to handle controlled substances in South Carolina, Registrant is not eligible to maintain a DEA registration in South Carolina. Accordingly, the Agency will order that Registrant's DEA registration in South Carolina be revoked. See Richard H. NG, D.O.,77 FR 29694, 29695 (2012) (temporary suspension of a state license still warrants revocation of DEA registration, even where there is a possibility of reinstatement); Kamal Tiwari, M.D.,76 FR 71604, 71606 (2011) (same).

2. North Carolina Analysis

According to North Carolina statute, “dispense” means “to deliver a controlled substance to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the prescribing, administering, packaging, labeling, or compounding necessary to prepare the substance for that delivery.” N.C. Gen. Stat. § 90-87(8) (2025). Further, a “practitioner” means a “physician . . . or other person licensed, registered or otherwise permitted to distribute, dispense, conduct research with respect to or to administer a controlled substance so long as such activity is within the normal course of professional practice or research in this State.” Id. at § 90-87(22)(a).

In Registrant's Interim Non-Practice Agreement with the North Carolina Medical Board, he has agreed to not “practice medicine.” North Carolina statute defines the “practice of medicine” as “[o]ffering or undertaking to prescribe, order, give, or administer any drug or medicine for the use of any other individual” and “[u]sing the designation . . . `physician' . . . .” Id. at § 90-1.1(5)(b) and (e). Therefore, pursuant to Registrant's agreement to not practice medicine, he cannot currently dispense controlled substances and cannot currently qualify as a “physician” in North Carolina.

Here, the undisputed evidence in the record is that Registrant currently lacks authority to practice medicine in North Carolina. Thus, because Registrant lacks authority to practice medicine in North Carolina and, therefore, is not authorized to handle controlled substances in North Carolina, Registrant is not eligible to maintain a DEA registration in North Carolina. See Jonathan Rosenfield, M.D.,85 FR 73806, 73807-08 (2020) (revoking registration for loss of state authority where respondent had entered into a non-practice agreement); Linda M. Shuck, D.O.,82 FR 55639, 55640-41 (2017) (same). Accordingly, the Agency will order that Registrant's DEA registration in North Carolina also be revoked.

III. Public Interest

The second OSC alleges, in addition to loss of state authority, that for approximately eight years, Registrant “issu[ed] prescriptions to five patients for Schedule II through V controlled substances outside the usual course of professional practice and not for a legitimate medical purpose” in violation of federal law. RFAAX B, at 3 (citing 21 CFR 1306.04(a)).

According to CSA regulations, a prescription for a controlled substance is proper only if “issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” 21 CFR 1306.04(a). The Agency must evaluate whether a Registrant's actions are within the “usual course of professional practice” according to North Carolina law, including the applicable North Carolina standard of care. See, e.g., Gonzales v. Oregon, 546 U.S. at 269-71; see also David Bockoff, M.D.,90 FR 9243, 9243 (2025) (for a doctor practicing in California, “the Agency . . . evaluates [the doctor's] actions according to California law, including the applicable California standard of care”); Neumann's Pharmacy, LLC,90 FR 8039, 8039 (2025) (finding that a pharmacy operating in Louisiana was held to Louisiana's standard of care); Michael Gore, P.A.,89 FR 54047, 54047 (2024) (finding that a doctor practicing in New York was held to New York's standard of care). It is the burden of the Government to provide Registrant with notice of the state law he is alleged to have violated and/or to provide expert testimony explaining the standard of care in North Carolina. See, e.g., David Bockoff, M.D., 90 FR at 9243 (“Authorities in the `Legal Requirements' and `Standard of Care' sections of the OSC give Respondent notice of the bases for the OSC's allegations and, accordingly, are the authorities that the Agency is using to adjudicate those allegations.”); Margaret Dennis, D.M.D.,90 FR 19310, 19310-11 (2025) (basing Florida's standard of care off of statutes cited in the OSC).

Here, the Government has not provided Registrant with notice of any state law or expert testimony purporting to espouse what the “usual course of professional practice” is in North Carolina or any standard of care applicable to North Carolina.^[7] As no law is identified, the deemed admitted factual allegations cannot be said to violate any state law or standard of care for which Registrant was provided notice. Accordingly, even with the deemed admissions, the Government is unable to establish a prima facie case that the alleged facts violate the standard of care.

Accordingly, the Agency cannot sustain the Government's public interest allegation in the second OSC. The Agency will revoke based solely on the Registrant's lack of state authority in both South Carolina and North Carolina.

Order

Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 824(a), I hereby revoke DEA Certificate of Registration Nos. FE7195452 and BE7654127 issued to Henry Emery, M.D. Further, pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 ( printed page 46930) U.S.C. 823(g)(1), I hereby deny any pending applications of Henry Emery, M.D., to renew or modify these registrations, as well as any other pending application of Henry Emery, M.D., for additional registration in South Carolina or North Carolina. This Order is effective October 30, 2025.

Signing Authority

This document of the Drug Enforcement Administration was signed on September 25, 2025, by Administrator Terrance Cole. That document with the original signature and date is maintained by DEA. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DEA Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of DEA. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .