From McCarthy v. U.S. DEA, decided yesterday by Third Circuit Judge Cindy Chung, joined by Judges Peter Phipps and Jane Roth:
McCarthy is a physician assistant who held a DEA COR [Certificate Of Registration] allowing him to prescribe Schedule II through V controlled substances. McCarthy prescribed controlled substances despite the fact that he was not being supervised by a physician with whom he had a written agreement as required by Pennsylvania law. In response to his conduct, on April 21, 2023, the DEA issued McCarthy an Order to Show Cause why his continued registration was not inconsistent with the public interest. [Factual details omitted. -EV]
McCarthy … argues that the Administrator's decision to revoke his COR was arbitrary and capricious or an abuse of discretion…. To make this point, McCarthy primarily relies on "summaries" of eight DEA adjudications. McCarthy's counsel now acknowledges that seven of these summaries were inaccurate, that the eighth decision does not exist, and that the summaries and non-existent decision were all generated by Artificial Intelligence (AI). McCarthy's counsel further acknowledges that he never took care to confirm the accuracy of the summaries or even that the decisions existed. {We ordered McCarthy's counsel to provide the cases to the Court and explain if and how he verified the accuracy of his summaries. In his response, McCarthy's counsel acknowledged that he knew that he had submitted erroneous summaries and a non-existent case to this Court long before the filing of his response. We are separately ordering McCarthy's counsel to show cause why he should not be sanctioned for his conduct, particularly for his lack of candor to the Court.}
Accordingly, we will not consider this portion of his brief. {McCarthy's counsel also concedes that the Government has successfully rebutted the eight summaries. This provides us with another reason not to consider this portion of the brief.} …
Here's the order to show cause, which requires McCarthy's lawyer "to show cause why he should not be sanctioned for his conduct with respect to the briefing in this case, specifically with regard to his lack of candor to the Court":
