Oregon Prescription Drug Monitoring Program, an agency of the State of Oregon, Plaintiff-Appellee, ACLU Foundation Of Oregon, Inc.; John Doe 1; John Doe 2; John Doe 3; John Doe 4; James Roe, M.D., Intervenor-Plaintiffs-Appellees,
U.S. Drug Enforcement Administration, Defendant in Intervention, Defendant-Appellant.
Submitted November 7, 2016
Submission Withdrawn January 30, 2017
Resubmitted June 26, 2017 Portland, Oregon
from the United States District Court for the District of
Oregon D.C. No. 3:12-cv-02023-HA Ancer L. Haggerty, Senior
District Judge, Presiding
Samantha Lee Chaifetz (argued) and Mark B. Stern, Attorneys,
Appellate Staff; Beth S. Brinkmann, Deputy Assistant Attorney
General; Joyce R. Branda, Acting Assistant Attorney General;
Civil Division, United States Department of Justice,
Washington, D.C.; for Defendant-Appellant.
Beuhler (argued), Salem, Oregon, for Plaintiff-Appellee.
Freed Wessler (argued) and Ben Wizner, American Civil
Liberties Union Foundation New York, New York; Kevin Diaz,
Compassion & Choices, Portland, Oregon; for
Priscilla Joyce Smith, Law Offices of Priscilla Smith,
Brooklyn, New York, for Amicus Curiae Yale Law School
Information Society Project.
Pulvers, Holland & Knight LLP, Portland, Oregon, for
Amici Curiae Oregon Medical Association, American Medical
Association, Alaska State Medical Association, Arizona
Medical Association, California Medical Association, Hawaii
Medical Association, Idaho Medical Association, Montana
Medical Association, Nevada State Medical Association, and
Washington State Medical Association.
Before: M. Margaret McKeown, William A. Fletcher, and Raymond
C. Fisher, Circuit Judges.
panel reversed the district court's order that the United
States Drug Enforcement Administration's use of
administrative subpoenas issued against Oregon's
Prescription Drug Monitoring Program violated
intervenors' privacy interests; held that the intervenors
lacked Article III standing to seek relief different from
that sought by Oregon; and held that the federal
administrative subpoena statute, 21 U.S.C. § 876,
preempted Oregon's statutory court order requirement, Or.
Rev. Stat. § 431A.865.
the DEA issued two administrative subpoenas to the
Prescription Drug Monitoring Program, Oregon brought a
declaratory judgment action, seeking a declaration that it
could not be compelled to disclose an individual's health
information to the DEA unless ordered by a federal court.
Intervenors, who consisted of the ACLU Foundation of Oregon
and five individuals, brought a claim distinct from
Oregon's, namely that the DEA's use of administrative
subpoenas violated intervenors' asserted Fourth Amendment
rights in certain private health information. The district
court granted the motion to intervene, and held that the
DEA's use of administrative remedies constituted a Fourth
panel held that the intervenors must establish independent
standing because they sought relief different from that
sought by Oregon, the plaintiff. Specifically, the panel held
that Oregon's basis for relief rested on a state-law
procedural argument, whereas, intervenors' claim for
relief was founded on the Fourth Amendment and its
requirement of probable cause. The panel concluded that the
intervenors did not establish independent Article III
standing, and therefore, they lacked standing to bring their
Fourth Amendment claim and their related Administrative
Procedure Act claim.
panel rejected Oregon's claim that its statutory
requirement for a court order in all cases in which a
subpoena was issued did not conflict with federal law. The
panel held that the Oregon statute stood as an obstacle to
the full implementation of the federal Controlled Substances
Act, and consequently the two provisions were in positive
conflict, and Or. Rev. Stat. § 431A.865 was preempted by
21 U.S.C. § 876.
McKEOWN, Circuit Judge:
of its oversight of drugs subject to the Controlled
Substances Act ("CSA"), the United States Drug
Enforcement Administration ("DEA") regularly issues
investigative subpoenas. Those subpoenas are issued without
prior approval by a court. In response to two recent
subpoenas, Oregon's Prescription Drug Monitoring Program
("Oregon, " the "Oregon Program, " or
"PDMP") sought a declaratory judgment that, under
state law, the DEA must obtain a court order to enforce the
subpoenas. The Oregon Program did not claim, however, that
the DEA must obtain a warrant backed by probable cause.
ACLU Foundation of Oregon and five individuals (collectively
"Intervenors") intervened, arguing that the
DEA's use of subpoenas violates their Fourth Amendment
rights. They sought declaratory and injunctive relief
prohibiting the DEA from obtaining prescription records from
the PDMP without a warrant supported by probable cause. The
district court did not analyze whether Intervenors have
standing to bring this claim. Instead, it reached the merits
of the Fourth Amendment claim and found that the DEA's
use of administrative subpoenas violated privacy interests
asserted by Intervenors in certain prescription information.
We reverse without reaching the merits of the Fourth
Amendment claim because Intervenors lack Article III standing
to seek relief different from that sought by Oregon. Just
this month the Supreme Court clarified this independent
standing requirement for intervenors. See Town of Chester
v. Laroe Estates, No. 16-605, slip op. at 6 (U.S. June
5, 2017) ("[A]n intervenor of right must have Article
III standing in order to pursue ...