A three-member panel of the 9th U.S. Circuit Court of Appeals ruled Monday that the Drug Enforcement Administration does not need a court-ordered warrant to subpoena information from Oregon’s Prescription Drug Monitoring Program. It also found the ACLU should not have been allowed to intervene in the case. (Associated Press photo) (AP Photo)
A federal appeals panel ruled Monday that the U.S. Drug Enforcement Administration can issue a subpoena for information in an Oregon database that tracks doctors and the narcotics they prescribe without getting a court order, reversing a lower court ruling.
The three-member panel of the 9th U.S. Circuit Court of Appeals found the federal law that grants subpoena power to the agency preempts Oregon law, which requires a court order.
Congress enacted the Controlled Substances Act, in part, “to strengthen law enforcement tools against the traffic in illicit drugs” and allows federal authorities to obtain such information through a subpoena, the appeals panel noted.
State law directly conflicts with the federal statute, providing that the Oregon Health Authority disclose information from its prescription monitoring program in response to a court order based on probable cause.
Oregon’s law undermines the intent of Congress to empower the Drug Enforcement Administration, the panel ruled.
The appeals court also found that the U.S. District Court shouldn’t have allowed the American Civil Liberties Union to intervene in Oregon’s case against the DEA because it failed to establish independent standing.
U.S. District Judge Ancer L. Haggerty ruled in 2014 that patients have a reasonable expectation of privacy for their prescription records and that law enforcement officials must seek a warrant for information from Oregon’s database.
The Drug Enforcement Administration appealed.
The Oregon Legislature created the monitoring database in 2009 to log prescriptions filled by pharmacies in the state, the physicians who prescribed the narcotics and the patients who use them. The state included privacy protections, including the court order. The database went live two years later.
The Drug Enforcement Administration argued it could use administrative subpoenas under the Controlled Substances Act.
The state sued the agency after it issued three subpoenas for database information. The American Civil Liberties Union joined the case on behalf of four patients and a doctor, taking the state’s argument one step further in contending that federal agents must have probable cause and a signed search warrant for the information.
The subpoenas could violate a person’s Fourth Amendment right to privacy and unreasonable search and seizure, the ACLU argued. The ACLU sought a court injunction.
Haggerty didn’t analyze whether the ACLU had the right to intervene, and instead found that the DEA violated privacy rights asserted by the ACLU, the appeals panel’s opinion said.
“We reverse without reaching the merits of the Fourth Amendment claim,” the appeals panel said. Because the ACLU is seeking a different outcome than the state, it needed to show independent standing to intervene in the case and it did not, the panel ruled.
The DEA’s two administrative subpoenas sought records of a single patient and two prescribing physicians, not records related to the ACLU, the appeals court said.
The appeals panel said it recognized the “particularly private nature of the medical information” at issue and said the ACLU’s concern about disclosure wasn’t unreasonable. Yet even so, the ACLU lacked standing because it and those it represented weren’t “under an impending threat of disclosure.”
The appeals court did point out that the state still has the power to resist a DEA administrative subpoena, which would require the DEA to then get a court order for the information.
The appeals panel described this step as “a critical safeguard in light of the particularly important privacy interest implicated here.”
Attorney Nathan Freed Wessler, a New York-based lawyer who argued the appeal for the American Civil Liberties Union, said he was disappointed.
Next month, the ACLU will appear in federal court in Utah in a separate lawsuit and make the same argument that the DEA violates privacy rights by using “mere administrative subpoenas.”
“The court recognizes that medical records are private and sensitive and therefore require strong legal safeguards,” Wessler said. “Regrettably, it held that our clients lacked ‘standing’ to press for those safeguards in this litigation.”