     Case: 15-10195   Document: 00513474930        Page: 1   Date Filed: 04/21/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                    No. 15-10195                        FILED
                                                                    April 21, 2016

UNITED STATES OF AMERICA,                                          Lyle W. Cayce
                                                                        Clerk
             Plaintiff – Appellee

v.

JOSEPH ZADEH, D.O.,

             Defendant – Appellant


                Appeal from the United States District Court
                     for the Northern District of Texas


Before HIGGINBOTHAM, OWEN, and ELROD, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      The Drug Enforcement Agency sought the medical records of 67 of Dr.
Joseph Zadeh’s patients in an investigation into violations of the Controlled
Substances Act. The district court granted its petition for enforcement. Dr.
Zadeh appeals that order, arguing that enforcing the subpoena would violate
the Fourth Amendment and Texas law. We AFFIRM the order of enforcement
with instruction.
                                         I.
      On October 22, 2013, investigators from the Texas Medical Board and
the DEA visited the office of Dr. Zadeh in Euless, Texas. After the investigators
submitted to office employees an administrative subpoena from the Texas
Medical Board, the employees supplied the investigators with information and
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                                  No. 15-10195

documents covered by the subpoena. While the Medical Board investigators
scanned and copied documents, the DEA agents conducted interviews with
neighboring businesses and visited a local pharmacy, where they looked at Dr.
Zadeh’s prescriptions. Dr. Zadeh’s attorney arrived and asked the investigators
for identification and to cease the search. The DEA agents presented
identification and departed the scene.
        About a month later, on November 25, 2013, the DEA issued a second
subpoena to Dr. Zadeh through certified mail, seeking the medical records of
67 individuals who had received prescriptions associated with the doctor’s DEA
registration number. The subpoena defined “medical records” to include
“diagnosis, intake, prescriptions, laboratory work, referrals, cop[ies] of
identification, insurance and method of payment.” It had a nondisclosure
provision, instructing the doctor to “suspend notice” to affected patients for one
year.
        Dr. Zadeh refused to comply with the subpoena. In February 2014, the
government petitioned the federal district court for enforcement under 21
U.S.C. § 876(c), which permits the Attorney General to “invoke the aid” of the
federal courts to “issue an order” enforcing a subpoena “[i]n the case of
contumacy.” The government included a declaration by a DEA investigator,
describing the nature of the ongoing investigation and explaining that the
records sought were “limited in scope to information relevant to the
investigation.”
        The district court judge referred the government’s petition to a
magistrate judge. Dr. Zadeh moved to dismiss under Rule 12(b)(6), urging that
probable cause was required but wanting, that enforcement would violate the
Fourth Amendment, and in any event, that the Texas Occupations Code barred
disclosure of patient medical records.


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      The magistrate judge ordered the parties to consider “narrowing the
scope of the . . . subpoena” and to “make a good-faith effort to resolve this
dispute” without court intervention. As described in the Joint Status Report,
the government proposed limiting the scope of the subpoena to: (1) information
sufficient to identify the patient, including the patient’s full name, date of
birth, and address; (2) limited intake information necessary to identify the
patient and the condition for which a controlled substance was prescribed; (3)
information related to a diagnosis for which a controlled substance was
prescribed; (4) the results of any laboratory work because of which a controlled
substance was prescribed; and (5) information pertaining to the prescription of
a controlled substance, including dates of prescriptions, types of prescriptions,
and quantities prescribed. Dr. Zadeh did not agree to these terms.
      After a joint hearing, the magistrate judge issued a report recommending
the enforcement of the subpoena, subject to the terms of the government’s
settlement proposal. The magistrate judge also concluded that the
nondisclosure provision of the subpoena should not be enforced; that is, Dr.
Zadeh should not be prohibited from providing his patients with notice of the
investigation.
      Over Dr. Zadeh’s objections, the district court accepted the magistrate
judge’s recommendations, granted the government’s petition for enforcement,
and denied motions for reconsideration and to stay enforcement. This Court
granted a stay pending appeal.
                                         II.
       “[W]hen reviewing an administrative subpoena, the court plays a
‘strictly limited’ role.” 1 As a general rule, on appeal “[a] subpoena enforcement



      1  Sandsend Fin. Consultants, Ltd. v. Fed. Home Loan Bank Bd., 878 F.2d 875, 879
(5th Cir. 1989)).
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order is reviewed for abuse of discretion.” 2 We review the district court’s
conclusions of law underlying its decision to enforce the subpoena de novo, and
its factual findings for clear error. 3
                                                 III.
         Dr. Zadeh makes several arguments against enforcement. We consider
each in turn.
                                                 A.
         First, Dr. Zadeh argues that the Texas Occupations Code prohibits him
from providing the subpoenaed records. 4 The Code prevents disclosure of
“communication[s] between a physician and a patient” or “record[s] of the
identity, diagnosis, evaluation, or treatment of a patient by a physician,”
unless the patient consents or the information is subject to an exception. 5 The
issue on appeal is whether federal law – the Controlled Substances Act –



         2   United States v. Chevron U.S.A., Inc., 186 F.3d 644, 647 (5th Cir. 1999).
         3   See United States v. Transocean Deepwater Drilling, Inc., 767 F.3d 485, 489 (5th Cir.
2014).
         See Tex. Occ. Code § 159.002.
         4

         Id. The record is not clear as to whether the Occupations Code applies to the records
         5

at issue here. In the proceedings below, the DEA argued that the exception in Section
159.004, permitting disclosure to “a governmental agency, if the disclosure is required or
authorized by law,” governed here. The exception only applies in “situation[s] other than a
court or administrative proceeding.” The government has abandoned this argument on
appeal, with good reason. The federal government has routinely argued that administrative
investigations are “proceedings,” and numerous circuit courts have agreed. See, e.g., United
States v. Senffner, 280 F.3d 755, 761 (7th Cir. 2002); United States v. Kelley, 36 F.3d 1118,
1127 (D.C. Cir. 1994); United States v. Schwartz, 924 F.2d 410, 423 (2d Cir. 1991); United
States v. Sutton, 732 F.2d 1483, 1490 (10th Cir. 1984); United States v. Browning, Inc., 572
F.2d 720, 724 (10th Cir. 1978); United States v. Fruchtman, 421 F.2d 1019, 2021 (6th Cir.
1970); Rice v. United States, 356 F.2d 709, 712 (8th Cir. 1966). Moreover, Texas courts have
routinely recognized that “administrative proceedings” encompass administrative
investigations like this one. See Ex parte Lowe, 887 S.W.2d 1, 2 (Tex. 1994); Strayhorn v.
Willow Creek Res., Inc., 161 S.W.3d 716, 723-24 (Tex. App.—Austin 2005, no pet.) (quoting
Black’s Law Dictionary 46 (7th ed. 1999) (defining “administrative proceeding”)). Finally,
§ 159.003 prohibits “the release of confidential information to investigate or substantiate
criminal charges against a patient,” and this provision would be rendered meaningless if
§ 159.003 were limited to hearings before adjudicative tribunals. Tex. Occ. Code § 159.003(b).
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preempts the Texas Occupations Code. Because we conclude that it does, state
law affords Dr. Zadeh no defense against enforcement of the subpoena.
       Under the doctrine of federal preemption, a federal law supersedes or
supplants an inconsistent state law or regulation. 6 The canon embraces three
distinct types of preemption: express, field, and conflict. 7 Express preemption
requires Congress to explicitly state its intent to preempt relevant state laws. 8
Field preemption occurs when Congress intends to “occupy the field,” taking
over a field of law to the exclusion of state or local authority. 9 Finally, conflict
preemption takes two forms: (i) when compliance with both state and federal
law is impossible, 10 and (ii) when a state law “stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of
Congress.” 11
       Dr. Zadeh points to the preemption provision of the Controlled
Substances Act, disclaiming Congressional purpose to “occupy the field” and
deprive states of the authority to regulate controlled substances on their own. 12
Yet the Act explicitly retains preemptive effect over state regulations when
“there is a positive conflict between . . . this subchapter and . . . State law so
that the two cannot consistently stand together.” 13 Dr. Zadeh argues that there
is no such conflict here. 14 We disagree.

       6 See Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992).
       7 Id.
       8 See Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S.

190, 203 (1983); Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977).
       9 See Sprietsma v. Mercury Marine, 537 U.S. 51, 64 (2002).
       10 Pac. Gas & Elec. Co., 461 U.S. at 204.
       11 Hines v. Davidowitz, 312 U.S. 52, 67 (1941); see also Gade, 505 U.S. at 98; Felder v.

Casey, 487 U.S. 131, 138 (1988); Perez v. Campbell, 402 U.S. 637 (1971).
       12 21 U.S.C. § 903.
       13 Id.
       14 He reasons that the Act is part a broad regulatory scheme that includes federal

HIPAA regulations, which allow for disclosure of health information under administrative
subpoenas but expressly provide that they do not preempt any “provision of State law [that]
relates to the privacy of individually identifiable health information,” 45 C.F.R. §§ 164.512(f),
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       “What is a sufficient obstacle [to give rise to conflict preemption] is a
matter of judgment, to be informed by examining the federal statute as a whole
and identifying its purpose and intended effects.” 15 Here, Congress intended in
the Controlled Substances Act to “provide meaningful regulation over
legitimate sources of drugs to prevent diversion into illegal channels.” 16 The
Act states that “[f]ederal control” in this area is “essential to the effective
control of the interstate incidents of . . . traffic in controlled substances,” 17 and
it grants the DEA broad enforcement power to prevent, detect, and investigate
such diversion. 18 As part of its investigative authority, the government may
subpoena records “in any investigation relating to [its] functions . . . with
respect to controlled substances.” 19 The Act also authorizes the government to
“invoke the aid” of the federal courts “to compel compliance with the
subpoena.” 20
       The DEA here issued its subpoena in its investigation of the diversion of
controlled substances pursuant to the Controlled Substances Act. According to
Dr. Zadeh, the Texas Occupations Code prevents the DEA from obtaining the
records it seeks. Put another way, the Occupations Code “stands as an obstacle
to the accomplishment and execution of the full purposes and objectives of




160.203(b). Dr. Zadeh argues that since HIPAA’s reach is limited by state law, so too is the
reach of the Controlled Substances Act. We find neither legal nor logical basis for the
conclusion. Further, Dr. Zadeh has not shown that he is a “covered entity” under HIPAA and
the district court made no finding as to whether HIPAA applies.
       15 Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 373 (2000).
       16 Gonzales v. Raich, 545 U.S. 1, 10 (2005).
       17 21 U.S.C. § 801(6).
       18 See generally 21 U.S.C. §§ 801-904.
       19 21 U.S.C. § 876(a). The Attorney General has delegated his authority under the

Controlled Substances Act to the DEA. See 28 C.F.R. §§ 0.100, 0.104; id. pt. 0, subpt. R, app.
§ 4.
       20 21 U.S.C. § 876(c).


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Congress.” 21 Under the doctrine of preemption, the Controlled Substances Act
must prevail.
                                             B.
       Because this case raises the preemption doctrine, Dr. Zadeh argues that
the Texas Attorney General should have been given notice and an opportunity
to intervene under 28 U.S.C. § 2403(b). The statute provides that,


       (b) In any action, suit, or proceeding in a court of the United States
       to which a State or any agency, officer, or employee thereof is not
       a party, wherein the constitutionality of any statute of that State
       affecting the public interest is drawn in question, the court shall
       certify such fact to the attorney general of the State, and shall
       permit the State to intervene . . .

This rule is restated and expanded in Federal Rule of Civil Procedure 5.1,
which obligates the party bringing the challenge to notify the state attorney
general. 22


       21 Hines, 312 U.S. at 67. Without engaging in an analysis of the preemption doctrine,
we reached a similar result in Gilbreath v. Guadalupe Hosp. Found., Inc., 5 F.3d 785 (5th
Cir. 1993) (per curiam). There, the plaintiff sought to block enforcement of an administrative
subpoena for her medical records by invoking the physician-patient privilege recognized
under Texas law. Id. at 791. We held that she could not “block the release of her medical
records” using Texas law because it was a “federal case” in which a federal authority (the
Merit Systems Protection Board) was “seeking to enforce subpoenas issued under federal
statutory authority.” Id. Plaintiff’s defenses were “therefore dictated by federal law,” which
does not recognize a physician-patient privilege. Id.
       22 Rule 5.1 provides:

       (a) Notice by a Party. A party that files a pleading, written motion, or other
       paper drawing into question the constitutionality of a federal or state statute
       must promptly:
               (1) file a notice of constitutional question stating the question and
       identifying the paper that raises it, if . . .
                       (B) a state statute is questioned and the parties do not include
       the state, one of its agencies, or one of its officers or employees in an official
       capacity; and
               (2) serve the notice and paper on the . . . state attorney general if a state
       statute is questioned . . . .
       (b) Certification by the Court. The court must, under 28 U.S.C. §2403, certify
       to the appropriate attorney general that a statute has been questioned.
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       Dr. Zadeh’s argument turns on whether the constitutionality of the
Texas Occupations Code is “drawn in question” such that the requirements of
§ 2403(b) are triggered. Preemption doctrine is, of course, rooted in the
Supremacy Clause of the Constitution; 23 in this sense, a claim that state law
is preempted by federal law is a constitutional claim. 24 But there remains “a
question whether section 2403(b) is meant to apply to cases where the only
constitutional challenge is under the supremacy clause.” 25
       As the DEA points out, the Supreme Court considered a similar question
concerning 28 U.S.C. § 2281, the statute that preceded § 2403. 26 Section 2281
required the convening of a three-judge court in any case in which a party
sought to enjoin the operation of a state or federal statute “upon the ground of
unconstitutionality of such statute.” In Swift & Co. v. Wickham, the Court
concluded that § 2281 did not apply when “the state statute or regulation in
question is pre-empted by or in conflict with some federal statute or regulation
thereunder.” 27
       In limiting the applicability of § 2281, the Court considered the
challenges “of judicial administration” created by requiring a three-judge
panel. 28 The requirement under § 2403 – notice to the state attorney general –



       23 Fid. Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 152 (1982).
       24 See, e.g., Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 388 (2000) (holding
that a Massachusetts statute prohibiting state entities from buying goods or services from
companies doing business with Burma was “preempted, and its application [wa]s
unconstitutional, under the Supremacy Clause”); KVUE, Inc. v. Moore, 709 F.2d 922, 926 (5th
Cir. 1983) (holding part of a state statute setting the rates charged for political advertising
“unconstitutional because it conflicts directly with federal law and is, therefore, preempted”).
       25 Dynamics Corp. of Am. v. CTS Corp., 794 F.2d 250, 259 (7th Cir. 1986), rev’d on

other grounds, 481 U.S. 69 (1987).
       26 Congress passed § 2403(b) in 1976 as part of a legislative package that included the

repeal of § 2281. Pub. L. No. 94-381, 90 Stat. 1119 (1976); Merrill v. Town of Addison, 763
F.2d 80, 82 (2d Cir. 1985).
       27 382 U.S. 111, 120, 129 (1965).
       28 Id. at 128.


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is arguably less burdensome. The Swift Court’s reasoning also relied upon the
text of § 2281. 29 Section 2403 is phrased differently. 30
       Nonetheless, Swift casts light upon § 2403(b). 31 The Court reasoned that
suits rooted in the Supremacy Clause are different than “the traditional Due
Process Clause, Equal Protection Clause, Commerce Clause, or Contract
Clause” cases because of the task faced by the court considering them. 32 “[T]he
basic question involved in [Supremacy Clause] cases . . . is never one of
interpretation of the Federal Constitution but inevitably one of comparing two
statutes” to see if they can be read harmoniously. 33 The Court also explained
that the stakes are different: if a court concludes that a state statute is
preempted by a federal statute, and Congress does not like this result, it has
the power to revisit its statute or regulation to accommodate the state law. 34
On the other hand, if a federal district court strikes down a state law as
substantively unconstitutional, it “[can] be dealt with only by constitutional
amendment” if Congress wants the state law to stand. 35 These considerations
are no less relevant in the context of § 2403(b) than they are in the context of
§ 2281.
       As a practical matter, the factual and procedural posture of this case
distinguishes it from those in which this Court has concluded that § 2403(b)
notice and intervention were warranted. Compare the facts here to those in
Bridges v. Phillips Petroleum Co., where plaintiffs were precluded from


       29 Id. at 126. The Court reasoned that the “upon the ground of unconstitutionality”
clause would be superfluous if § 2281 were interpreted to require a three-judge panel in any
case restraining enforcement of a state statute. Id.
       30 28 U.S.C. § 2403(b).
       31 See Int’l Paper Co. v. Inhabitants of Town of Jay, 887 F.2d 338, 341 (1st Cir. 1989)

(analyzing the scope of § 2403(b) in light of the Supreme Court’s interpretation of § 2281).
       32 Swift, 382 U.S. at 120.
       33 Id.
       34 Id. at 127.
       35 Id.


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bringing their wrongful death action under the Texas Worker’s Compensation
Act. 36 They argued that the Texas statute – and the state constitutional
provision on which it relied – violated the federal Equal Protection Clause. 37
We certified the question to the Texas Attorney General, affording him sixty
days to apply for rehearing “if he should determine that the public interest has
not been fully protected by the judgment to be entered.” 38 Similarly, in Nash v.
Chandler, the district court granted the State of Texas leave to intervene after
a plaintiff bought a First Amendment challenge to a state statute that
prohibited mass picketing. 39 Unlike Nash and Bridges, Dr. Zadeh has raised
no substantive constitutional challenge to a Texas law. In fact, it is the federal
government’s enforcement efforts that he questions on Fourth Amendment
grounds. Only after he raised a Texas statute as his defense did the DEA
respond that state law cannot stay federal law.
      We acknowledge that the State has some interest in a suit raising a
preemption challenge to a state law, but this interest is not as sharply defined
as in a case in which a federal court may strike down a state law completely.
In considering this very issue – “whether section 2403(b) is meant to apply to
cases where the only constitutional challenge is under the supremacy clause”
– the Seventh Circuit observed that unlike substantive constitutional
challenges, “preemption may leave the state statute in force in most of its
domain.” 40 That is true here. Nothing in today’s holding undermines the
substantive constitutional legitimacy of the Texas Occupations Code. Our
holding does not diminish the role of the Code in state law enforcement. It is

      36  733 F.2d 1153, 1154 (5th Cir. 1984).
      37  Id.
       38 Id. at 1156, n.7.
       39 848 F.2d 567, 572 (5th Cir. 1988).
       40 Dynamics Corp. of Am., 794 F.2d at 259 (considering but not deciding “whether

section 2403(b) is meant to apply to cases where the only constitutional challenge is under
the supremacy clause”).
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rather preempted only to the extent it has been raised by the doctor as a
justification for noncompliance with a lawful federal subpoena issued under
the Controlled Substances Act. In such circumstances, we conclude that
§ 2403(b) does not require notice to the Texas Attorney General, even though
providing notice is the better practice.
                                            C.
       Relatedly, Dr. Zadeh argues that the patients named by the subpoena
should be given notice and the opportunity to intervene, since they may have
their own constitutional arguments against enforcement. 41 Whatever merit
this argument may have had at the outset of this litigation, it has significantly
diminished. The magistrate judge declined to enforce the nondisclosure
provision of the subpoena, a decision adopted by the district court. The doctor
could have notified his patients about the investigation – indeed, Dr. Zadeh
some months ago commenced doing just that 42 – but no patients have
intervened.
                                            D.
       Next, Dr. Zadeh contends that the district court did not evaluate the
enforceability of the subpoena under the correct standard. While the district
court applied the “reasonable relevance” standard, he argues that the Fourth
Amendment requires a more stringent standard here because his patients have
a reasonable expectation of privacy in medical records. 43 He asks that we



       41 Dr. Zadeh did not raise this argument in the proceedings below, arguing now that
“exceptional circumstances” exist to warrant our consideration of it. See Honeycutt v. Long,
861 F.2d 1346, 1352 (5th Cir. 1988). We disagree.
       42 See 28(j) letter dated Dec. 15, 2015.
       43 It bears mentioning that this claim of privacy arises against a background of the

mining of prescription data for economic ends, an enterprise that gathers virtually every
written prescription to be sold to pharmaceutical houses and others for profit. See Katie
Thomas, Pills Tracked from Doctor to Patient to Aid Drug Marketing, N.Y. Times, May 16,
2013, http://www.nytimes.com/2013/05/17/business/a-data-trove-now-guides-drug-company-
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remand the case so that the district court may either evaluate the subpoena
under a balancing test, weighing the interests for and against enforcement, or
require the government to demonstrate probable cause. In response, the DEA
does not dispute that Dr. Zadeh’s patients have a reasonable expectation of
privacy in their medical records. Instead, it contends that the reasonable
relevance test sufficiently protects the Fourth Amendment rights at stake.
       Under the “reasonable relevance” standard, courts will enforce an
administrative subpoena issued in aid of an investigation if: “(1) the subpoena
is within the statutory authority of the agency; (2) the information sought is
reasonably relevant to the inquiry; and (3) the demand is not unreasonably
broad or burdensome.’’ 44 Applying this standard, the district court found that
“the DEA’s subpoena is consistent with the Fourth Amendment.”
       We hold that the district court did not err in applying the reasonable
relevance standard. On at least one prior occasion, we have applied this
standard in the context of an administrative subpoena seeking an individual’s
medical records. In Gilbreath v. Guadalupe Hospital Foundation Inc., we
considered an action to enjoin the enforcement of a subpoena issued by an
administrative judge on behalf of the Merit Systems Protection Board seeking
the hospital records of the plaintiff and her son. 45 In affirming the district
court’s decision to enforce the subpoena, we noted that “[t]he court’s inquiry is
limited to two questions: (1) whether the investigation is for a proper purpose
and (2) whether the documents the agency seeks are relevant to the
investigation,” 46 essentially a tracking of the reasonable relevance standard.


pitches.html; Milt Freudenheim, And You Thought a Prescription Was Private, N.Y. Times,
Aug. 8, 2009, http://www.nytimes.com/2009/08/09/business/09privacy.html.
       44 United States v. Transocean Deepwater Drilling, Inc., 767 F.3d 485, 488 (5th Cir.

2014).
       45 5 F.3d 785 (5th Cir. 1993) (per curiam).
       46 Id. at 790.


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       The Supreme Court has distinguished “cases of actual search and
seizure,” which require probable cause, from those involving an administrative
subpoena, which the Court characterized as “constructive” searches. 47 In light
of the fact that “the person served with [an administrative] subpoena may
challenge it in court before complying with its demands,” administrative
subpoenas “are limited by the general reasonableness standard of the Fourth
Amendment . . . , not by the probable cause requirement.” 48 Even so, they
remain far removed from the Writs of Assistance of yesteryear. That the DEA’s
investigation could ultimately result in criminal charges “does not change this
analysis.” 49
       We also reject Dr. Zadeh’s suggestion that the district court should have
applied a balancing test under Camara v. Municipal Court 50 and United States
v. Roundtree. 51 In Camara, the Supreme Court evaluated a warrantless
administrative inspection of an apartment building, considering three factors:
(1) the history of judicial and public acceptance of the type of search under
review, (2) the significance of the public interest at stake and the probable



       47  Okla. Press Publ’g Co., v. Walling, 327 U.S. 186, 202 (1946).
       48  In re Subpoena Duces Tecum, 228 F.3d 341, 348 (4th Cir. 2000); see also United
States v. Morton Salt Co., 338 U.S. 632, 642-43 (1950) (comparing the “power of inquisition”
granted to administrative bodies to that of grand juries because both “can investigate merely
on suspicion that the law is being violated”).
        49 Becker v. Kroll, 494 F.3d 904, 917 (10th Cir. 2007); see also United States v. LaSalle

Nat’l Bank, 437 U.S. 298, 313-16 (1978) (evaluating an IRS administrative summons under
the reasonable relevance standard and refusing to “draw the line between permissible civil
and impermissible criminal purposes”); United States v. Davis, 636 F.2d 1028, 1036 (5th Cir.
Unit A Feb. 1981) (explaining that since “the same evidence will generally support either
civil or criminal tax proceedings,” civil summons pursuant to the agency’s institutional
purpose could be enforced “even if criminal proceedings were also contemplated”). The DEA
has not yet recommended criminal charges here. The investigation could also lead to an
administrative action seeking revocation of the doctor’s registration, see 21 U.S.C. § 824, as
well as to a civil action against the doctor seeking civil penalties, see id., or injunctive relief,
see id. § 843(f).
        50 387 U.S. 523 (1967).
        51 420 F.2d 845 (5th Cir. 1969).


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unavailability of alternative means to satisfy it, and (3) the privacy interests
at stake. 52 In Roundtree, we applied these factors in evaluating the
enforceability of an IRS summons. 53 As an initial matter, both Camara and
Roundtree predate Gilbreath. Moreover, the Supreme Court has limited their
reach, observing that Camara “turned upon the effort of the government
inspectors to make non-consensual entries into areas not open to the public,”
facts that were “quite different” from the administrative subpoena for
documents like payroll and sale records. 54 The Court unanimously reaffirmed
reasonable relevance as the appropriate standard for administrative
subpoenas seeking documents. 55
       In applying the reasonable relevance standard to medical records, we
join several of our sister circuits. For instance, in In re Administrative
Subpoena, the Sixth Circuit considered a subpoena from the Department of
Justice, issued pursuant to its investigation into health care fraud. 56 In
enforcing the subpoena, the court reasoned that “an administrative subpoena
is enforceable so long as 1) it satisfies the terms of its authorizing statute, 2)
the documents requested were relevant to the [agency’s] investigation, 3) the
information sought is not already in the [agency’s] possession, and 4) enforcing
the subpoena will not constitute an abuse of the court’s process.” 57 The Third,
Fourth, Seventh and Tenth Circuits have also applied versions of the
reasonable relevance test in upholding administrative subpoenas for medical
records. 58


       52 387 U.S. at 537.
       53 420 F.2d at 850.
       54 Donovan v. Lone Steer, 464 U.S. 408, 414 (1984).
       55 Id. at 415.
       56 289 F.3d 843 (6th Cir. 2001).
       57 Id. at 845.
       58 See Big Ridge, Inc. v. Fed. Mine Safety & Health Review Comm’n, 715 F.3d 631, 645-

48 (7th Cir. 2013) (applying reasonable relevance test to an administrative demand for
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                                       No. 15-10195

       Here, the subpoena – as limited by the July 2014 Joint Status Report –
satisfies the reasonable relevance standard. This Court “has consistently
recognized the summary nature of administrative subpoena enforcement
proceedings,” 59 and has made clear that “when reviewing an administrative
subpoena, the court plays a strictly limited role.” 60 The government need only
make a prima facie showing under the reasonable relevance standard, at which
point the party opposing enforcement bears the “heavy burden” of
demonstrating that the government has not met this standard. 61 “The burden
on the government . . . can be fulfilled by a simple affidavit” of an agent
involved in the investigation. 62
       The DEA has met this burden. That the DEA’s investigation is lawful
under the Controlled Substances Act is unchallenged. As the affidavit
accompanying the subpoena explained, “[t]he information sought is relevant
and material to a legitimate law enforcement inquiry,” “the subpoena is specific
and limited in scope to the extent reasonably practicable in light of the purpose
for which the information is sought,” and “de-identified information cannot
reasonably be used.” Further, the DEA’s attorney affirmed at oral argument


miners’ medical records in connection with Mine Safety Act investigation); Becker v. Kroll,
494 F.3d 904, 916-17 (10th Cir. 2007) (concluding that the Utah Medicaid Fraud Control
Unit’s subpoena for medical records met “minimal requirements for Fourth Amendment
reasonableness”); In re Subpoena Duces Tecum, 228 F.3d 341, 346-51 (4th Cir. 2000)
(affirming district court’s denial of motion to quash subpoena for patient medical files under
reasonable relevance standard); United States v. Westinghouse Elec. Corp., 638 F.2d 570 (3d
Cir. 1980) (concluding that subpoena for employee medical records was enforceable under
reasonable relevance standard, but remanding to provide employees notice and an
opportunity to intervene to assert personal privacy interests). Dr. Zadeh attempts to
distinguish these cases, but he highlights only immaterial differences in their facts or in the
statute under which the investigating authority acted.
       59 Burlington N. R.R. v. Office of Inspector Gen., 983 F.2d 631, 637 (5th Cir. 1993).
       60 Sandsend Fin. Consultants, Ltd. v. Fed. Home Loan Bank Bd., 878 F.2d 875, 879

(5th Cir. 1989) (internal quotation marks omitted).
       61 Mazurek v. United States, 271 F.3d 226, 229-30 (5th Cir. 2001) (internal quotation

marks omitted).
       62 Id. at 230 (internal quotation marks omitted).


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                                       No. 15-10195

that the subpoena did not include all of Dr. Zadeh’s patients; it was limited to
those patients whose prescriptions had already come to the attention of the
DEA through its other investigative efforts. 63 This uncontested assertion
further supports the district court’s conclusion that the subpoena was not
unduly broad or burdensome albeit implicating privacy interests of patients
whose records are produced but are not parties to this litigation. We are
persuaded that these privacy concerns are best protected by a court order
narrowly confining the scope of production to the ongoing government
investigation and placing all produced medical records under seal with no
access to others than the agents engaged here, absent further order of the
district court.
       Dr. Zadeh has not shown that the DEA cannot demonstrate reasonable
relevance. He takes issue with the fact that the investigator who testified to
the relevance of the records sought was not the same investigator who signed
the subpoena. However, “[t]he government may establish its prima facie case
by an affidavit of an agent involved in the investigation averring the [required]
elements,” suggesting that the agent averring need not be the same one who
files the summons. 64 He also argues that the district court applied an unclear
procedural standard in the enforcement proceedings, taking the DEA’s

       63   The DEA also made clear at oral argument that it does not seek the patients’ entire
medical records; rather, as proposed by the government in the Joint Status Report, the
subpoena solicits only information specifically relating to prescriptions for controlled
substances. Dr. Zadeh is free to cull the patients’ medical records to remove information not
covered by the subpoena before delivering the records to the government.
         64 Alphin v. United States, 809 F.2d 236, 238 (4th Cir. 1987); see also Lidas, Inc. v.

United States, 238 F.3d 1076, 1082 (9th Cir. 2001) (“Courts have consistently recognized that
declarations or affidavits by IRS directors or agents generally satisfy the Powell [reasonable
relevance] requirements.”); United States v. White, 853 F.2d 107, 111 (2d Cir. 1988) (“[T]he
government may even establish its prima facie case by the affidavit of an agent involved in
the investigation averring each . . . element.”); United States v. Kis, 658 F.2d 526, 536 (7th
Cir. 1981) (“The government ordinarily proves [the required] elements by affidavits of the
agents involved in the investigation. No more than that is necessary to make the prima facie
case.”).
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                                    No. 15-10195

conclusory affidavit as true without indicating whether it was applying Rule
12(b)(6) or Rule 56 of the Federal Rules of Civil Procedure. He asks us to
remand the case so that he may meet whatever standard applies. But Dr.
Zadeh has thoroughly briefed his opposition to enforcement at several stages
during this litigation, and there is no evidence that he was prejudiced by any
lack of clarity about what standard the court applied.
      The district court therefore did not err in concluding that the DEA
satisfied the reasonable relevance standard for enforcement.
                                          E.
      Finally, Dr. Zadeh contends that the district court should have declined
to enforce the subpoena for abuse of process. The affidavit submitted to the
court in support of enforcement was signed by one of the DEA agents who had
visited Dr. Zadeh’s office alongside representatives of the Texas Medical Board.
While the Board representatives accurately introduced themselves upon
arrival, the DEA agents did not. Dr. Zadeh argues that this incident both
undermines the credibility of the enforcement action and suggests that the
DEA already has some of the information sought by the subpoena.
      We have established a three-part test for determining whether
enforcement should be denied as an abuse of process: (i) “[D]id the
[government] intentionally or knowingly mislead” the subpoena recipient? (ii)
“[W]as [the recipient] in fact misled?” and (iii) Was “the subpoena the result of
the [government’s] allegedly improper access to [the recipient’s] records?” 65
The burden is on Dr. Zadeh to demonstrate a “substantial demonstration of
abuse” by presenting “‘meaningful evidence’ that the agency is attempting to
abuse its investigative authority.” 66


      65 SEC v. ESM Gov’t Sec., Inc., 645 F.2d 310, 317-18 (5th Cir. Unit B May 1981).
      66 In re EEOC, 709 F.2d 392, 400 (5th Cir. 1983) (quoting SEC v. Howatt, 525 F.2d
226, 229 (1st Cir.1975)).
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                                No. 15-10195

      The evidence is insufficient to meet our standard for denying
enforcement. During the incident, the Medical Board investigators identified
themselves and presented a subpoena, which truthfully stated that the
requested medical records were sought in connection with an administrative
investigation pending before the Medical Board. Dr. Zadeh has put forth no
evidence that the DEA agents who joined the Medical Board investigators
meant to mislead Dr. Zadeh’s employees by remaining silent during this time.
Nor has he supported his contention that, but for the allegedly improper access
to the records, the DEA would not have subsequently issued the subpoena. We
are not persuaded that the district court erred in rejecting the doctor’s abuse
of process objections and enforcing the subpoena.
                                     IV.
      For the foregoing reasons, we AFFIRM the district court’s enforcement
order as modified and REMAND with instruction and further proceedings
consistent with this opinion.




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