Ninth Circuit Sides With DEA Over Oregon and ACLU

PORTLAND, Ore. (CN) — The Ninth Circuit ruled Monday that the ACLU did not have standing to intervene in Oregon’s challenge to DEA subpoenas of the Oregon Prescription Drug Monitoring Program.

In November 2012, the Oregon Prescription Drug Monitoring Program sued the Drug Enforcement Administration and Department of Justice over administrative subpoenas regarding a doctor’s suspected distribution of illegal drugs.

The subpoena requested a physician profile on prescriptions written by a certain doctor between June 2011 and January 2012.

The DEA filed a petition to enforce the subpoena in August 2012, saying the state agency did not comply with the request.

Oregon said it refused to comply because to do so would violate state law. The state said it has its own prescription drug monitoring and reporting system, and told the feds, in effect, to butt out.

Oregon said it could not disclose the requested information unless it came from “a valid court order based on probable cause” and requested by a law enforcement agency involved in a related drug investigation, according to a DEA memorandum in support of its petition.

The ACLU intervened in December 2014, claiming the subpoenas violated the Fourth Amendment. U.S. District Judge Ancer Haggerty agreed, finding the ACLU did not need to establish standing to bring its constitutional claim.

Along with the ACLU, two transgender people who use testosterone for hormone replacement therapy intervened; as did two men who take Xanax and Vicodin for anxiety and pain disorders; and a doctor who regularly prescribes opiates and narcotics to hospice patients.

According to the intervenors, disclosure of highly personal information about a person’s gender identity therapy, treatment of mental health or substance abuse requires a high level of constitutional protection.

The DEA appealed, and on Monday a Ninth Circuit panel reversed, finding that the intervenors had to establish standing. Writing for the unanimous three-judge panel, Ninth Circuit Judge M. Margaret McKeown found that the ACLU, the patients and doctor had significantly different interests than Oregon and its drug monitoring program.

“What Oregon wants is a declaration that — pursuant to Oregon law — a prior court order is required before the DEA can enforce an investigative subpoena,” McKeown wrote.

“What intervenors want is something very different — they want declaratory and injunctive relief ‘prohibiting the DEA from obtaining prescription records from the PDMP [Prescription Drug Monitoring Program] without securing a probable cause warrant.’ Intervenors’ claim for relief is founded on the Fourth Amendment and its requirement of probable cause and a warrant.”

The panel also held that Oregon’s interpretation of its state law interfered with the federal Controlled Substances Act.

ACLU attorney Nathan Freed Wessler said the organization will continue to fight for constitutional protections to prescription records.

“The court recognized that medical records are private and sensitive and require strong legal safeguards,” Wessler said. “Regrettably, it held that our clients lacked ‘standing’ to press for those safeguards in this litigation.”

The ACLU is involved in a similar case in Utah, where it claims that the federal government needs warrants before searching the “digital medicine cabinets” of state residents.

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