United States v. Jonas, 19-1243

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtHOWARD, CHIEF JUDGE.
PartiesUNITED STATES DEPARTMENT OF JUSTICE, Petitioner, Appellee, v. MICHELLE RICCO JONAS, Respondent, Appellant.
Docket Number19-1243
Decision Date27 January 2022


MICHELLE RICCO JONAS, Respondent, Appellant.

No. 19-1243

United States Court of Appeals, First Circuit

January 27, 2022


Anthony J. Galdieri, Senior Assistant Attorney General, with whom Gordon J. MacDonald, Attorney General, and Lawrence M. Edelman, Assistant Attorney General, were on brief, for Appellant.

Seth R. Aframe, Assistant United States Attorney, with whom Scott W. Murray, United States Attorney, was on brief, for Appellee.

Nathan Freed Wessler, with whom Brett Max Kaufman and Jennifer Stisa Granick were on brief, for American Civil Liberties Union Foundation, amicus curiae.

Gilles R. Bissonnette and Henry Klementowicz, on brief for ACLU of New Hampshire Foundation, amicus curiae.


Zachary L. Heiden and Emma E. Bond, on brief for American Civil Liberties Union of Maine, amicus curiae.

Matthew R. Segal and Jessie J. Rossman, on brief for American Civil Liberties Union Foundation of Massachusetts, Inc., amicus curiae.

William Ramírez, on brief for American Civil Liberties Union of Puerto Rico, amicus curiae.

Robert B. Mann and Robert B. Mann Law Office, on brief for ACLU of Rhode Island, amicus curiae.

Before Howard, Chief Judge, and Thompson, [*] Circuit Judge.



Respondent-appellant Michelle Ricco Jonas ("Ricco Jonas"), the Program Manager for New Hampshire's Prescription Drug Monitoring Program (the "PDMP"), appeals from a district court judgment ordering compliance with an administrative subpoena issued to her by the United States Drug Enforcement Administration ("DEA") pursuant to 21 U.S.C. § 876, to produce the PDMP-kept prescription drug records of an individual.[1]On appeal, Ricco Jonas contends that the subpoena is unenforceable because, although it was issued to her and 21 U.S.C. § 876(c) authorizes the enforcement of a "subp[o]ena issued to any person," in her view, the subpoena really targeted the State of New Hampshire and states are not "person[s]" within the meaning of 21 U.S.C. § 876(c) against whom administrative subpoenas may be issued and enforced. Additionally, she argues that, even if 21 U.S.C. § 876(c) generally authorizes the enforcement of administrative subpoenas against a state, the Fourth Amendment still poses a bar to compliance because the subpoena-specified individual has a reasonable expectation of privacy in his prescription drug records, thereby allowing disclosure only after a finding of probable cause by a court. After careful


consideration, we reject both of Ricco Jonas's contentions and affirm the district court judgment.


A. The Controlled Substances Act

In 1970, Congress enacted the Comprehensive Drug Abuse Prevention and Control Act (the "Act"), Pub. L. No. 91-513, 84 Stat. 1236, to "consolidate various drug laws on the books into a comprehensive statute, provide meaningful regulation over legitimate sources of drugs to prevent diversion into illegal channels, and strengthen law enforcement tools against the traffic in illicit drugs." Gonzales v. Raich, 545 U.S. 1, 10 (2005). The main objectives of Title II of the Act, the Controlled Substances Act ("CSA"), 21 U.S.C. § 801 et seq., are "to conquer drug abuse and to control the legitimate and illegitimate traffic in controlled substances."[2] Raich, 545 U.S. at 12; id. at 12-13 ("Congress was particularly concerned with the need to prevent the diversion of drugs from legitimate to illicit channels."). To achieve these goals, Congress established a "closed regulatory


system" that makes it unlawful "to manufacture, distribute, dispense, or possess any controlled substance except as authorized by the CSA." Id. at 13 (citing 21 U.S.C. §§ 841(a)(1), 844(a)). As part of this regulatory system, "[t]he CSA requires manufacturers, physicians, pharmacies, and other handlers of controlled substances to comply with statutory and regulatory provisions mandating registration with the DEA, compliance with specific production quotas, security controls to guard against diversion, recordkeeping and reporting obligations, and prescription requirements." Id. at 27 (citing 21 U.S.C. §§ 821-830; 21 C.F.R. § 1301 et seq. (2004)).

The CSA authorizes the Attorney General to issue administrative subpoenas to investigate suspected illicit drug activity. See 21 U.S.C. § 876. Specifically, § 876(a) of the statute provides in relevant part that,

In any investigation . . . with respect to controlled substances . . . the Attorney General may subpe[o]na 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 the investigation. The attendance of witnesses and the production of records may be required from any place in any State or in any territory or other place subject to the jurisdiction of the United States . . . .

Id. § 876(a). The Attorney General has delegated this authority to the DEA. See id. § 878(a)(2); 28 C.F.R. §§ 0.100, 0.104, Appendix to Subpart R, Section 4.


Section 876(c) of the CSA provides for judicial enforcement of subpoenas issued under § 876(a). It states that,

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 or of which the subp[o]enaed person is an inhabitant, or in which he carries on business or may be found, to compel compliance with the subp[o]ena. The court may issue an order requiring the subp[o]enaed person to appear before the Attorney General to produce records, if so ordered, or to give testimony touching the matter under investigation. Any failure to obey the order of the court may be punished by the court as a contempt thereof. All process in any such case may be served in any judicial district in which such person may be found.

21 U.S.C. § 876(c). The CSA provides that 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." Id. § 903.

B. The PDMP and New Hampshire Law

In 2012, the New Hampshire legislature established the PDMP to "enhanc[e] patient care, curtail[] the misuse and abuse of controlled substances, combat[] illegal trade in and diversion of controlled substances, and enabl[e] access to prescription information by practitioner0s, dispensers, and other authorized individuals and agencies."[3] New Hampshire PDMP, https://www.newhampshirepdmp.com/ (last visited Jan. 27, 2022).


The PDMP operates an electronic system that "facilitate[s] the confidential sharing of information relating to the prescribing and dispensing of schedule II-IV controlled substances" within the State. N.H. Rev. Stat. Ann. § 126-A:90. Every dispenser -- "a person or entity who is lawfully authorized to deliver a schedule II-IV controlled substance" -- must report certain information each time a schedule II-IV drug is dispensed, including: dispenser's DEA registration number; prescriber's DEA registration number; patient's name, address, and date of birth; National Drug Code[4] of drug dispensed; quantity dispensed; date of dispensing; number of refills granted; whether the prescription is new or a refill; and, source of payment, among others. Id. §§ 126-A:89(VI), 126-A:91(VI)(a)-(o). This information is then stored in the PDMP database.[5]

New Hampshire state law provides that all information contained in or obtained from the PDMP "is confidential," and "is


not subject to discovery, subpoena, or other means of legal compulsion for release."[6] Id. § 126-A:92(I). Law enforcement may request information from the PDMP "on a case-by-case basis for the purpose of investigation and prosecution of a criminal offense when presented with a court order based on probable cause." Id. § 126-A:93(I)(b)(3). However, "[n]o law enforcement agency or official shall have direct access to query program information." Id.

In addition to the state-kept PDMP database, New Hampshire also requires practitioners -- including physicians, pharmacists, and hospitals -- to maintain their own, similar records "to show the receipt and disposition of all controlled drugs." Id. § 318-B:12(I). These practitioners' records must "meet the requirements of the department of health and human services and federal laws and regulations," and "shall indicate at least the name, dosage form, strength, and quantity of the controlled drug; the name and address of any person to whom the drug was administered, dispensed, sold or transferred and the date of any and all transactions involved with the controlled drug." Id. Unlike PDMP data, law enforcement officials may access a


practitioner's own records without a court order. Id. § 318-B:12(II) ("[Practitioners' records] shall be open for inspection only to federal, state, county and municipal law enforcement officers [and others] . . . whose duty it is to enforce the laws of [New Hampshire] or of the United States relating to controlled drugs.").


On June 11, 2018, the DEA issued an administrative subpoena to "Michelle Ricco Jonas, Program Manager for the NH PDMP" pursuant to 21 U.S.C. § 876(a). The subpoena, which was served on Ricco Jonas on June 13, 2018, stated that "[p]ursuant to an investigation of violations of 21 U.S.C. 801 et seq., [she was] to provide any and all records regarding [REDACTED], being maintained by the New Hampshire Prescription Drug Monitoring Program from February 28, 2016 through present day."[7]


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