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Oregon Prescription Drug Monitoring Program v. United States Drug Enforcement Administration

United States District Court, D. Oregon, Portland Division

February 11, 2014

OREGON PRESCRIPTION DRUG MONITORING PROGRAM, an agency of the STATE OF OREGON, Plaintiff,
v.
UNITED STATES DRUG ENFORCEMENT ADMINISTRATION, an agency of the UNITED STATES DEPARTMENT OF JUSTICE, Defendant. JOHN DOE 1, et al., Plaintiffs-Intervenors,
v.
UNITED STATES DRUG ENFORCEMENT ADMINISTRATION, an agency of the UNITED STATES DEPARTMENT OF JUSTICE, Defendant in Intervention

Page 958

For Oregon Prescription Drug Monitoring Program, an agency of the State of Oregon, Plaintiff: Sheila H. Potter, Oregon Department of Justice, Special Litigation Unit, Portland, OR; Sarah M. Villanueva, Oregon Department of Justice, Salem, OR.

For ACLU Foundation Of Oregon, Inc., Intervenor Plaintiff: Nathan F. Wessler, LEAD ATTORNEY, Ben Wizner, PRO HAC VICE, American Civil Liberties Union Foundation, New York, NY; Kevin Diaz, American Civil Liberties Union (ACLU), Portland, OR.

For John Doe 1, John Doe 2, John Doe 3, John Doe 4, James Roe, M.D., Intervenor Plaintiffs: Ben Wizner, Nathan F. Wessler, LEAD ATTORNEYS, PRO HAC VICE, American Civil Liberties Union Foundation, New York, NY; Kevin Diaz, American Civil Liberties Union (ACLU), Portland, OR.

For United States Drug Enforcement Administration, an agency of the United States Department of Justice, Defendant: Kevin C. Danielson, U.S. Attorney's Office, Portland, OR.

OPINION

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OPINION AND ORDER

Ancer L. Haggerty, United States Judge.

Plaintiff, the Oregon Prescription Drug Monitoring Program (PDMP) brought this action for declaratory relief against the United States Drug Enforcement Administration (DEA) pursuant to 28 U.S.C. § 2201 to determine its rights and obligations in complying with administrative subpoenas issued by the DEA. The American Civil Liberties Union of Oregon, Inc., John Does 1-4, and Dr. James Roe, M.D. (collectively " ACLU" or " intervenors" ), intervened in this matter pursuant to Federal Rule of Civil Procedure 24(a) over the objections of the DEA in order to raise arguments regarding intervenors' protected health information and Fourth Amendment rights. All parties have moved for summary judgment. For the following reasons, the ACLU's Motion for Summary Judgment [27] is granted, the PDMP's Motion for Summary Judgment [24] is denied as moot, and the DEA's Cross Motions for Summary Judgment [40 and 42] are denied.

BACKGROUND

In 2009, the Oregon legislature created the PDMP, an electronic database maintained by the Oregon Health Authority to record information about prescriptions of drugs classified in Schedules II-IV under the federal Controlled Substances Act (CSA).[1] Or. Rev. Stat. (ORS) 431.962. The

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PDMP became fully operational in 2011. A pharmacy that dispenses a Schedule II-IV prescription drug in Oregon must electronically report certain information regarding that prescription to the PDMP including: the quantity and type of drug dispensed, identifying information about the patient, and identifying information about the practitioner who prescribed the drug. ORS 431.964. The " primary purpose of the PDMP is to provide practitioners and pharmacists a tool to improve health care," by providing health care providers with a means to identify and address problems related to the side effects of drugs, risks associated with the combined effects of prescription drugs with alcohol or other prescribed drugs, and overdose. PDMP Fact Sheet, Wessler Decl. Ex. B. " Approximately 7,000,000 prescription records are uploaded to the system annually." Id.

Depending on the drug prescribed, the information reported to PDMP can reveal a great deal of information regarding a particular patient including the condition treated by the prescribed drug. Schedule II-IV drugs can be used to treat a multitude of medical conditions including AIDS, psychiatric disorders, chronic pain, drug or alcohol addiction, and gender identity disorder.

Pursuant to Oregon statute, prescription monitoring information uploaded to the PDMP constitutes " protected health information" and is not subject to disclosure except in limited circumstances. ORS 431.966. A physician or pharmacist may access patient records in the PDMP only if they " certif[y] that the requested information is for the purpose of evaluating the need for or providing medical or pharmaceutical treatment for a patient to whom the practitioner or pharmacist anticipates providing, is providing or has provided care." ORS 431.966(2)(a)(A). Relevant to this case, the PDMP may also disclose patient information " [p]ursuant to a valid court order based on probable cause and issued at the request of a federal, state or local law enforcement agency engaged in an authorized drug-related investigation involving a person to whom the requested information pertains." Id. at 431.966(2)(a)(C). The PDMP's public website repeatedly references the privacy protections afforded prescription information and informs visitors that law enforcement officials may not obtain information " without a valid court order based on probable cause for an authorized drug-related investigation of an individual." See, e.g., Oregon PDMP, Frequently Asked Questions, (January 31, 2014, 10:12 AM), http://www.orpdmp.com/faq.html.

The CSA empowers the Attorney General, and executive agencies acting pursuant to his authority, with broad authority to issue administrative subpoenas to investigate drug crimes. 21 U.S.C. § 876. Pursuant to § 876(a) " the Attorney General may subpoena witnesses, compel the attendance and testimony of witnesses, and require the production of any records (including books, papers, documents, and other tangible things which constitute or contain evidence) which the Attorney General finds relevant or material to" an investigation regarding controlled substances. These administrative subpoenas are not self enforcing, and " [i]n the case of contumacy by or refusal to obey a subpoena issued to any person, the Attorney General may invoke the aid of any court of the United States within the jurisdiction of which the investigation is carried on . . . to compel compliance with the subpoena." Id. at § 876(c). While there is no penalty

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for failing to comply with a § 876 subpoena, failure to obey a court order enforcing the subpoena " may be punished by the court as contempt thereof." Id.

The DEA has sought to utilize § 876 subpoenas to obtain prescription records from the PDMP. However, the PDMP has refused to comply with the administrative subpoenas on the basis that to do so would violate Oregon law. In at least one instance, the DEA obtained judicial enforcement of a § 876 subpoena against the PDMP for the production of all Schedule II-IV controlled substance prescriptions issued by a particular physician during the course of approximately seven months. United States v. Oregon Prescription Drug Monitoring Program, 3:12-mc-00298 (D. Or. Aug. 27, 2012). In that matter, the magistrate judge found ORS 431.966's court order requirement to be preempted by ยง 876. However, the PDMP was not provided with an opportunity to contest the validity of the subject administrative subpoena. The State of Oregon complied with the court ...


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