Oregon Prescription Drug Monit, et al v. USDEA

Filing

FILED OPINION (M. MARGARET MCKEOWN, WILLIAM A. FLETCHER and RAYMOND C. FISHER) REVERSED. Judge: MMM Authoring, FILED AND ENTERED JUDGMENT. [10487000]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
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,

No. 14-35402
D.C. No.
3:12-cv-02023HA
OPINION

v.
U.S. DRUG ENFORCEMENT
ADMINISTRATION, Defendant in
Intervention,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, Senior District Judge, Presiding
Argued and Submitted November 7, 2016
Submission Withdrawn January 30, 2017
Resubmitted June 26, 2017
Portland, Oregon
Filed June 26, 2017

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2 OR. PRESCRIPTION DRUG MONITORING PROGRAM V. DEA
Before: M. Margaret McKeown, William A. Fletcher,
and Raymond C. Fisher, Circuit Judges.
Opinion by Judge McKeown
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
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
*

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OR. PRESCRIPTION DRUG MONITORING PROGRAM V. DEA 3

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.
COUNSEL
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 DefendantAppellant.

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4 OR. PRESCRIPTION DRUG MONITORING PROGRAM V. DEA
Dustin Beuhler (argued), Salem, Oregon, for PlaintiffAppellee.
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.

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OR. PRESCRIPTION DRUG MONITORING PROGRAM V. DEA 5

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 relief that is different from
that which is sought by a party with standing.”). We also

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6 OR. PRESCRIPTION DRUG MONITORING PROGRAM V. DEA
hold that the federal administrative subpoena statute,
21 U.S.C. § 876, preempts Oregon’s statutory court order
requirement, Or. Rev. Stat. § 431A.865. 1
Background
I. The Controlled Substances Act
Congress enacted the CSA as part of the Comprehensive
Drug Abuse Prevention and Control Act of 1970. 21 U.S.C.
§ 801 et seq.; Gonzales v. Raich, 545 U.S. 1, 12 (2005). The
CSA’s main objectives are “to conquer drug abuse and to
control the legitimate and illegitimate traffic in controlled
substances.” Gonzales, 545 U.S. at 12. To achieve these
goals, Congress established a “comprehensive regime” that
makes it unlawful to manufacture, distribute, dispense, or
possess any controlled substance except as authorized by the
CSA. Id. at 12–13 (citing 21 U.S.C. §§ 841(a)(1), 844(a)).
Controlled substances are categorized into five schedules
based on the drugs’ potential for abuse, accepted medical
uses, and likelihood of causing psychological or physical
dependency. 21 U.S.C. § 812.
Under the CSA, the Attorney General is authorized to
issue administrative subpoenas to investigate drug crimes:
In any investigation relating to his functions
under this subchapter [Subchapter I—
Control and Enforcement] with respect to
controlled substances . . . the Attorney
General may subp[o]ena witnesses, compel
the attendance and testimony of witnesses,
In 2015, the Oregon Legislative Counsel renumbered Or. Rev. Stat.
§ 431.966 as Or. Rev. Stat. § 431A.865.
1

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OR. PRESCRIPTION DRUG MONITORING PROGRAM V. DEA 7

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 the
investigation.
21 U.S.C. § 876(a). This authority has been delegated to the
DEA. See 28 C.F.R. § 0.100. Section 876(c) provides for
judicial enforcement of subpoenas issued under § 876(a): “In
the case of contumacy by or refusal to obey a subp[o]ena
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 subp[o]ena.”
II. The Oregon Program
The Oregon PDMP is operated by the Oregon Health
Authority, which maintains records about prescriptions of
drugs classified in Schedules II–IV under the CSA. Or. Rev.
Stat. § 431A.855. When pharmacies in Oregon dispense a
covered prescription drug, they are required to report
electronically to the PDMP, among other things, the
patient’s name, address, date of birth, and sex; the dispensing
pharmacy’s identity; and the prescribing practitioner’s
identity. Or. Rev. Stat. § 431A.860. Approximately
700,000 prescription records are uploaded to the system
annually.
Under Oregon law, prescription monitoring information
submitted to the PDMP constitutes “protected health
information” and is not subject to disclosure except in
limited circumstances. Or. Rev. Stat. § 431A.865(1). For
instance, practitioners and pharmacists may obtain
prescription monitoring information where “the requested

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8 OR. PRESCRIPTION DRUG MONITORING PROGRAM V. DEA
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.”
Id.
§ 431A.865(2)(a)(A). Oregon law also authorizes the
Oregon Health Authority to disclose prescription monitoring
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. § 431A.865(2)(a)(F).
III.

Procedural Background

In September 2012, the DEA issued two administrative
subpoenas to the PDMP, seeking the records of one patient
and two prescribing physicians.
Oregon brought a
declaratory judgment action in district court, seeking a
declaration that “it cannot be compelled to disclose an
individual’s health information to the DEA pursuant to an
administrative subpoena unless ordered by a federal court.” 2
Intervenors the ACLU Foundation of Oregon, four “John
Doe” patients, and Dr. “James Roe,” M.D., sought
intervention as of right under Federal Rule of Civil
2
In an earlier instance, after Oregon declined to honor an
administrative subpoena in January 2012, the DEA obtained a court
order enforcing the subpoena, which sought all covered prescriptions
issued by a particular physician over the course of approximately seven
months. See Order to Enforce DEA Administrative Subpoena, United
States v. Or. Prescription Drug Monitoring Program, No. 3:12-mc00298 (D. Or. Aug. 7, 2012). After the magistrate judge found that
Oregon’s court order requirement is preempted by the CSA, Oregon
produced the records in compliance with the order.

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OR. PRESCRIPTION DRUG MONITORING PROGRAM V. DEA 9

Procedure 24(a). 3 They 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. In
furtherance of that claim, Intervenors also sought an
injunction prohibiting the DEA from obtaining prescription
records from the PDMP without securing a warrant
supported by probable cause. The district court granted the
motion to intervene and Intervenors filed a complaint-inintervention bringing their Fourth Amendment claim, as
well as a co-extensive Administrative Procedure Act claim.
On cross-motions for summary judgment, the district
court ruled that Intervenors did not need to establish their
own standing to bring a Fourth Amendment claim but
instead were required only to meet Rule 24(a)’s intervention
criteria and to show that the claim was ripe. The district
court then held that the DEA’s use of administrative
subpoenas to obtain PDMP records constituted a Fourth
Amendment violation. Reasoning that unconstitutional
federal statutes cannot preempt state law, the district court
concluded that this finding also resolved the preemption
issue, and thus it did not reach the preemption arguments
raised by Oregon. The DEA appealed.

3
The four John Does each receive treatment with prescriptions for
Schedule II-IV drugs that are filled in Oregon pharmacies and recorded
in the PDMP. Dr. Roe is an internist who primarily treats geriatric and
hospice patients and thus prescribes more Schedule II-IV drugs than
physicians in other practice areas. Dr. Roe has been interviewed and
investigated by the DEA in the past.

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10 OR. PRESCRIPTION DRUG MONITORING PROGRAM V. DEA
Analysis
I. Intervenors and the Standing Requirement
A. Intervenors Must Establish Standing Because
They Seek Relief Different from Oregon
The threshold issue in this appeal is whether Intervenors
must establish independent standing in order to pursue
different relief from that sought by Oregon, the plaintiff.
The answer is yes because the relief sought by Oregon is
distinct from the relief sought by Intervenors.
After argument in this matter, the Supreme Court
decided Town of Chester, which addresses the issue we face
here, the requirement of intervenor standing. See Town of
Chester, slip op. at 4–6. As the Supreme Court did in Town
of Chester, it is useful to begin with first principles: “Article
III of the Constitution limits the power of federal courts to
deciding ‘cases’ and ‘controversies.’” Diamond v. Charles,
476 U.S. 54, 61 (1986). “[T]he requirement that a claimant
have standing is an essential and unchanging part of the caseor-controversy requirement of Article III.” Davis v. Fed.
Election Comm’n, 554 U.S. 724, 733 (2008) (quoting Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)) (internal
quotation marks omitted). This axiom ensures both that the
legal issues presented to the court are sharpened by the
presence of concrete adversity and that judicial review is
sought by those who have a direct stake in the outcome.
Diamond, 476 U.S. at 62 (citations omitted).
Accordingly, the Supreme Court has counseled that
“[s]tanding is not dispensed in gross.” Davis, 554 U.S. at
734 (quoting Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996)).
Instead, “the standing inquiry requires careful judicial
examination of a complaint’s allegations to ascertain

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whether the particular plaintiff is entitled to an adjudication
of the particular claims asserted.” Allen v. Wright, 468 U.S.
737, 752 (1984) (emphasis added), abrogated on other
grounds by Lexmark Int’l, Inc. v. Static Control
Components, Inc., 134 S. Ct. 1377 (2014). In other words,
Article III requires “a plaintiff [to] demonstrate standing for
each claim he seeks to press and for each form of relief that
is sought.”
Davis, 554 U.S. at 734 (quoting
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006))
(internal quotation marks omitted).
This ineluctable requirement is not vitiated simply
because an intervenor is raising a new or different claim for
relief in the context of an existing case rather than bringing
an original suit. However, until its decision in Town of
Chester, the Court had not addressed the question whether
an intervenor “must satisfy not only the requirements of Rule
24(a)(2), but also the requirements of Art[icle] III.”
Diamond, 476 U.S. at 68–69; id. at 68 n.21 (noting the
varying conclusions of the Courts of Appeals). After
reciting the constitutional foundation for standing analysis,
the Court in Town of Chester reiterated that “standing is not
dispensed in gross.” Town of Chester, slip op. at 5 (quoting
Davis, 554 U.S. at 734). The Court went on to explain that
“[t]he same principle applies when there are multiple
plaintiffs” and “to intervenors of right.” Id. at 5–6. Put
succinctly: “Although the context is different, the rule is the
same.” Id. at 6. The Court stated the rule as follows: “an
intervenor of right must have Article III standing in order to
pursue relief that is different from that which is sought by a
party with standing.” Id. This includes when the intervenor
“seeks additional relief beyond that which the plaintiff
requests.” Id.

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12 OR. PRESCRIPTION DRUG MONITORING PROGRAM V. DEA
With the Supreme Court’s newly-minted rule in mind,
we examine the relief sought here. 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.
Oregon seeks a declaratory
judgment
that,
because
of
Or.
Rev.
Stat.
§ 431A.865(2)(a)(F), “it cannot be compelled to disclose an
individual’s protected health information” without a federal
court order finding that “the subpoena meets all relevant
federal requirements.” Oregon “asks this court to find that
the Controlled Substances Act does not preempt
[§ 431A.865(2)(a)(F)], except as to probable cause.”
Oregon acknowledges that § 431A.865(2)(a)(F)’s probable
cause requirement is preempted and disclaims any reliance
on the Fourth Amendment. Instead, Oregon’s entire basis
for relief rests on a state-law procedural argument, namely
that the DEA must get a federal court to bless the subpoena
before it is issued.
What Intervenors want is something very different—
they want declaratory and injunctive relief “prohibiting the
DEA from obtaining prescription records from the PDMP
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. Intervenors
explicitly declined to “take a position on the preemption
issue” in their complaint-in-intervention. Intervenors do not
dispute that they seek relief different from Oregon in the
form of a requirement for a warrant supported by probable
cause “instead of a subpoena.”
The Supreme Court’s decision lays to rest Intervenors’
argument that they do not need to establish independent
Article III standing to bring their Fourth Amendment claim.
In accord with Town of Chester, we hold that where, as here,

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the Intervenors seek to obtain different relief than the
original plaintiff, the Intervenors must establish independent
Article III standing. The Intervenors have not done so.
B. Intervenors Lack Standing to Bring Their Fourth
Amendment Claim
The DEA’s two administrative subpoenas seek the
records of a single patient and two prescribing physicians,
not records related to any of the Intervenors. Intervenors
have provided no evidence that the DEA is seeking or will
seek any records related to them. 4 Like the plaintiffs in the
Supreme Court’s recent decision in Clapper v. Amnesty
International USA, Intervenors’ injuries are speculative and
fail to qualify as “concrete, particularized, and actual or
imminent; fairly traceable to the challenged action; and
redressable by a favorable ruling.” See 133 S. Ct. 1138,
1147 (2013) (citations omitted). The Supreme Court
explained that “[a]lthough imminence is concededly a
somewhat elastic concept, it cannot be stretched beyond its
purpose, which is to ensure that the alleged injury is not too
speculative for Article III purposes . . . .” Id. (quoting Lujan,
504 U.S. at 565 n.2) (internal quotation marks omitted).
Thus, “threatened injury must be certainly impending to
constitute injury in fact, and . . . [a]llegations of possible
future injury are not sufficient.” Id. (alteration in original)
(quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990))
(internal quotation marks omitted). In Clapper, the Court
found the plaintiffs’ theory of injury too speculative because
plaintiffs could not provide evidence that their
communications with foreign contacts had been or would be
While Dr. Roe speculates that the DEA will investigate his
prescribing practices for his Oregon patients, he offers no concrete
evidence to that end.
4

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14 OR. PRESCRIPTION DRUG MONITORING PROGRAM V. DEA
monitored by the government. 133 S. Ct. at 1148–50.
Likewise, Intervenors are not under an impending threat of
disclosure. We see no meaningful distinction between the
nature of the claims asserted in Clapper and those here.
Nor can Intervenors establish standing via their fear of
disclosure and the preventative measures they took to avoid
disclosure. The John Does, who each take Schedule II–IV
drugs subject to the CSA, declared that knowing the DEA
could obtain their prescription records in the future without
a warrant issued in compliance with the Fourth Amendment
causes them psychological distress and could change their
future behavior in seeking medical treatment. Similarly, Dr.
Roe stated that the DEA and FBI previously investigated
him in Washington State pursuant to Washington’s drug
monitoring program. He believes the investigation stemmed
from information obtained without a probable cause warrant.
Dr. Roe claims that the investigation, as well as the
knowledge that he could also be investigated with respect to
his Oregon patients, has made him more reluctant to
prescribe Schedule II–IV drugs to his patients.
We acknowledge the particularly private nature of the
medical information at issue here and thus do not question
the seriousness of Intervenors’ fear of disclosure. Nor do we
imply that this concern is unreasonable. Nevertheless, we
are bound by Clapper, which rejected a comparable
argument. The Court held that plaintiffs’ preventative
measures taken out of fear of being surveilled did not
establish standing, even if plaintiffs’ fear was not
unreasonable. As the Court observed,
[t]he Second Circuit’s analysis improperly
allowed respondents to establish standing by
asserting that they suffer present costs and
burdens that are based on a fear of

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surveillance, so long as that fear is not
“fanciful,
paranoid,
or
otherwise
unreasonable.” This improperly waters down
the fundamental requirements of Article III.
Respondents’ contention that they have
standing because they incurred certain costs
as a reasonable reaction to a risk of harm is
unavailing—because the harm respondents
seek to avoid is not certainly impending. In
other words, respondents cannot manufacture
standing merely by inflicting harm on
themselves based on their fears of
hypothetical future harm that is not certainly
impending.
133 S. Ct. at 1151 (citation omitted). Thus, Intervenors lack
standing to bring their Fourth Amendment claim and their
related Administrative Procedure Act claim.
II. Federal Preemption
Substances Act

Under

the

Controlled

Having addressed Intervenors’ claim, we are left with
Oregon’s claim that its statutory requirement for a court
order does not conflict with federal law.
The Supremacy Clause gives Congress “the power to
pre-empt state law expressly.” Hillman v. Maretta, 133 S.
Ct. 1943, 1949 (2013) (citation omitted). Congress did just
that in the CSA, which contains an express preemption
provision: state law is preempted whenever “there is a
positive conflict between [a] provision of th[e CSA] and [a]
State law so that the two cannot consistently stand together.”
21 U.S.C. § 903. Because this carve-out is an express
invocation of conflict preemption, we must determine
whether “compliance with both federal and state regulations

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16 OR. PRESCRIPTION DRUG MONITORING PROGRAM V. DEA
is a physical impossibility,” or the “state law stands as an
obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.” Gade v. Nat’l Solid
Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992) (internal
quotation marks and citations omitted); accord United States
v. Zadeh, 820 F.3d 746, 750–52 (5th Cir. 2016) (applying
the “obstacle” test to hold that 21 U.S.C. § 876 preempts a
provision of the Texas Occupations Code under § 903).
This case doesn’t involve a physical impossibility, so
instead we ask whether requiring a court order is a
“sufficient obstacle” to the operation of 21 U.S.C. § 876.
Our analysis of this question is “informed by examining the
federal statute as a whole and identifying its purpose and
intended effects.” Crosby v. Nat’l Foreign Trade Council,
530 U.S. 363, 373 (2000). Here, Congress enacted the CSA
in part to “strengthen law enforcement tools against the
traffic in illicit drugs.” Gonzales, 545 U.S. at 10. The upshot
of the statutory scheme is that the Attorney General can
obtain testimony and documents through a subpoena and
without a court order. See 21 U.S.C. § 876(a). A court order
is needed only in the event of noncompliance (“contumacy
. . . or refusal to obey”) with the subpoena. Id. § 876(c).
Before disclosure of information, Oregon law interposes
a significant obstacle—“a valid court order” in all cases in
which a subpoena is issued.
Or. Rev. Stat.
§ 431A.865(2)(a)(F). The statute provides that the Oregon
Health Authority “shall disclose [prescription monitoring]
information,” id. § 431A.865(2)(a), “[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.
§ 431A.865(2)(a)(F).

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Oregon concedes that the probable cause requirement is
preempted by federal law. Oregon states, however, that the
“PDMP is required to wait for judicial review and a court
order before it c[an] turn over the records.”
Even assuming that the probable cause requirement is
severable, the Oregon statute stands as an obstacle to the full
implementation of the CSA because it “interferes with the
methods by which the federal statute was designed to reach
[its] goal.” Gade, 505 U.S. at 103 (quoting Int’l Paper Co.
v. Ouellette, 479 U.S. 481, 494 (1987)). By placing the
initial burden of requiring a court order to enforce the
subpoena upon the DEA, § 431A.865 interferes with the
scheme Congress put in place for the federal investigation of
drug crimes and thereby undermines Congress’s goal of
“strengthen[ing] law enforcement tools against the traffic in
illicit drugs.” Gonzales, 545 U.S. at 10. Consequently, we
hold that the two provisions are in “positive conflict”—Or.
Rev. Stat. § 431A.865 is preempted by 21 U.S.C. § 876. We
note, however, that this result preserves Oregon’s option to
contest subpoenas for protected information and thus trigger
the enforcement procedure described in § 876(c), a critical
safeguard in light of the particularly important privacy
interest implicated here.
REVERSED.