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Oregon Prescription Drug Monitoring Program v. U.S. Drug Enforcement Administration

United States Court of Appeals, Ninth Circuit

June 26, 2017

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,
v.
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          Submission Withdrawn January 30, 2017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

         Appeal 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.

          Dustin Beuhler (argued), Salem, Oregon, for Plaintiff-Appellee.

          Nathan Freed Wessler (argued) and Ben Wizner, American Civil Liberties Union Foundation New York, New York; Kevin Diaz, Compassion & Choices, Portland, Oregon; for Intervenor-Plaintiffs-Appellees.

          Priscilla Joyce Smith, Law Offices of Priscilla Smith, Brooklyn, New York, for Amicus Curiae Yale Law School Information Society Project.

          Roy 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.

         SUMMARY[*]

         Subpoenas / Standing

         The 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.

         After 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 Amendment violation.

         The 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.

         The 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.

          OPINION

          McKEOWN, Circuit Judge:

         As part 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.

         The 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 ...


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