Program Administrator of the New Hampshire Controlled Drug Prescription Health and Safety Program v. Department of Justice

The United States Drug Enforcement Administration (DEA) issued an administrative investigative subpoena to the Program Manager for New Hampshire’s Prescription Drug Monitoring Program under 21 U.S.C. §876. The subpoena commanded her to use her official state position to obtain state-collected prescription drug data about an individual from a state-owned and -controlled healthcare program database and deliver it to the DEA. New Hampshire law permits the program administrator to provide such information to law enforcement only “when presented with a court order based on probable cause,” N.H. Rev. Stat. §126- A:93, I(b)(3), a quality the DEA subpoena lacks. Violating this state law is a class B felony. N.H. Rev. Stat. §126-A:94, VII. The Program Manager objected to the subpoena. The United States Department of Justice filed an action to compel compliance under 21 U.S.C. §876(c). The questions presented are:

1. Whether an administrative investigative subpoena issued under 21 U.S.C. §876 to a state official commanding her to act in her official capacity to obtain state data from a stateowned and -controlled healthcare program and deliver it to the DEA in violation of state criminal law is a subpoena issued to the State.

2. Whether the States, their agencies, and their officials in their official capacities are “persons” under 21 U.S.C. §876(c).