NOTE-024: Rhode Island Hospital subpoena order

Contribution

This is the first ruling I found in which a court quashed an administrative subpoena that another district court had already ordered enforced, ex parte, without notice to the recipient. The court says it is “unaware of any similar case” (p. 10 n.7). It is also the order in the DOJ gender-affirming-care subpoena campaign that rests quashal on the minors’ Fourteenth Amendment right to informational privacy as an independent ground. It adds a remedy-scope holding: relief extends to all minors because separating out state wards would itself disclose the protected fact.

Key insight

The court avoids a direct collision with the Texas court by attacking the subpoena, not the enforcement order. Because a § 3486 subpoena is “the product of the DOJ’s own statutory authority” and not issued by any court, the court reasons by analogy to APA vacatur. On that reasoning it may “effectively vacate (i.e., quash)” the agency instrument even though doing so “necessarily implicates” another court’s judgment premised on it (p. 12). The Texas court then used exactly that framing to keep its own order alive. It read the Rhode Island injunction as binding only DOJ and ordered RIH to deposit all responsive records with the Texas court in camera (N.D. Tex. ECF 26, May 18, 2026).

Assumptions

The authorities and standards the order rests on:

• Enforcement standard for § 3486 subpoenas (First Circuit): DOJ must show (1) a congressionally authorized purpose, (2) relevance, (3) adequate description, and (4) proper procedures. U.S. DOJ v. Ricco Jonas, 24 F.4th 718, 726 (1st Cir. 2022), quoting Sturm, Ruger, 84 F.3d 1, 4 (p. 14). The order treats this enforcement test as governing a motion to quash.

• Standing: Lujan (injury, causation, redressability) and First Choice Women’s Res. Ctrs. v. Davenport (2026) (p. 8). The Child Advocate’s statutory role comes from R.I. Gen. Laws § 42-73-7 (p. 11).

• Collateral attack and preclusion:

  • Pratt v. Ventas (6th Cir.) and Verogna v. Johnstone (D.N.H.) for the doctrine;
  • Baella-Silva and In re Iannochino (1st Cir.) for res judicata elements;
  • Martin v. Wilks, 490 U.S. 755 (1989), and Hansberry v. Lee: nonparties are not bound. The order acknowledges in n.8 that Wilks was superseded by statute as to consent decrees;
  • Taylor v. Sturgell: the adequate-representation exception;
  • Postal Telegraph Cable Co. v. Newport (1918) and Blonder-Tongue: no preclusion without an opportunity to be heard (pp. 9–13).

• FDCA law:

  • United States v. Facteau, 89 F.4th 1, 15 (1st Cir. 2023): off-label prescribing of a cleared device is lawful;
  • In re Celexa & Lexapro, 915 F.3d 1, 5 (1st Cir. 2019);
  • 21 U.S.C. § 396;
  • 21 U.S.C. § 353(b)(2): the prescription-dispensing exemption from § 352;
  • Gonzales v. Oregon: state regulation of medicine;
  • R.I. Gen. Laws §§ 5-37.8-1, 23-101-2;
  • FDA public statements (2018; Jan. 2025 guidance);
  • OLC, 43 Op. O.L.C. 81, 85 (2019) (pp. 14–17).

• Improper purpose: United States v. Powell, 379 U.S. 48, 58 (1964); United States v. Comley (1st Cir. 1989); United States v. Gertner, 65 F.3d 963, 970 (1st Cir. 1995), under which quashal is warranted when improper purpose is the sole purpose (p. 18).

• Informational privacy:

  • Whalen v. Roe, 429 U.S. 589, 599 (1977);
  • NASA v. Nelson (2011), which assumed the right without deciding it;
  • Dobbs (2022), cited for describing Whalen’s “right to shield information from disclosure”;
  • Borucki v. Ryan (1st Cir. 1987);
  • Vega-Rodriguez (1st Cir. 1997);
  • Arroyo González v. Rosselló Nevares (D.P.R. 2018) (pp. 20–21).

  The court reserves whether the Fourth Amendment independently applies (n.10).

Key results

What the order holds (ECF 38, pp. as paginated; ECF 44 is identical in substance except the injunction):

• Standing (§II.A, pp. 8–9): the Child Advocate has standing. The children’s informational-privacy rights “will surely be injured”, the injury is caused by the subpoena, and it is redressable “notwithstanding the Texas court’s Order”.
• Collateral attack (§II.B, pp. 9–13): the doctrine does not bar relief.
  • (a) The Child Advocate was not a party in Texas, and its interests differ from RIH’s. The Texas court itself said RIH had not shown harm to itself “rather than its patients, who are third parties” (N.D. Tex. ECF 9 at 9, quoted p. 11).
  • (b) Quashing an agency-issued subpoena is analogous to APA vacatur, so it is not a collateral attack even though it “necessarily implicates” the Texas order (p. 12).
  • (c) RIH is not precluded, because the Texas order was entered before RIH had notice or an opportunity to be heard. Reconsideration in Texas would have demanded “extraordinary relief” (p. 13).
• Ground 1, no congressionally authorized purpose (§II.C.1, pp. 14–18): DOJ’s theory runs as follows. An off-label prescription changes “intended use” (21 C.F.R. § 201.128), which makes labeling inadequate under § 352(f)(1), which exposes anyone in the distribution chain, including hospitals and (via Park) officers, to liability under §§ 331, 333(a). The court holds the theory cannot be squared with Facteau and Celexa or with § 396. Because prescribing is lawful, “it is therefore logically impossible to construct an aiding-and-abetting, facilitation, or conspiracy theory predicated on nothing more than the physician’s own lawful prescribing act” (p. 16). DOJ’s position also conflicts with FDA statements and OLC’s 2019 opinion. Independently, § 353(b)(2) exempts prescription-dispensed drugs from § 352(f) (p. 17). Theories of conspiracy, billing fraud and healthcare fraud “are also tethered to off-label use and fail for the same reasons” (n.9).
• Ground 2, improper purpose and bad faith (§II.C.2, pp. 18–19): the Administration publicly characterized gender-affirming care for minors as abuse, directed DOJ to end it, and celebrated hospitals curtailing programs (citing ECF 20-1). The court rejects DOJ’s Gertner argument: a mixed purpose requires “a genuine legitimate investigative purpose, not merely a legal theory”. Otherwise DOJ could “immunize any coercive investigation from the improper purpose doctrine simply by appending an untenable legal theory to it” (p. 19). It follows seven listed decisions.
• Ground 3, informational privacy (§II.C.3, pp. 19–23): full enforcement “would violate the right to informational privacy of the children”. DOJ failed to explain relevance or safeguards, and conceded it would try to locate and question children and caregivers (n.12).
• Scope of relief (pp. 22–23): the court rejects DOJ’s proposed DCYF-only limitation. Identifying DCYF wards among gender-affirming-care patients “would itself expose precisely the sensitive intersection of information the constitutional right is designed to protect”. Relief extends to all minors “not from any expansion of the Child Advocate’s standing, but from the practical impossibility of implementing a narrower remedy”.
• Findings on DOJ conduct (pp. 1–7):
  • DOJ told the court RIH “never complied and never moved to quash” (ECF 9 at 2) and omitted that it had not answered RIH’s February search-term proposal.
  • DOJ asked RIH on April 28 to confer “this week”, then filed ex parte in N.D. Tex. about 48 hours later. The court calls this “a subterfuge”.
  • The Hsiao declaration’s statement that the last communication was Feb. 4, 2026 was “clearly misleading, if not utterly false”.
  • The declaration’s claim that identifying data was necessary omitted that DOJ had accepted anonymized data elsewhere: “at best, deceptive”.
  • DOJ could not say when the investigation moved to N.D. Tex.
  • The court credits RIH over DOJ counsel on whether anonymization was discussed (n.3).
• Disposition (pp. 23–24): both motions to quash (ECF 1, 28) are granted. The subpoena, not the Texas order, is quashed on “independent grounds”. DOJ is enjoined as described above. Judgment was entered the same day (ECF 39).

Claims

id	claim	strength	support
C1	The Child Advocate has Article III standing.	precedent (Lujan; First Choice; D. Md. and W.D. Pa. subpoena cases)	pp. 8–9. A CA1 concurrence says there are “serious questions” (third-party standing never decided in the First Circuit).
C2	Quashing the subpoena is not a collateral attack on the Texas enforcement order.	doctrine by analogy (APA vacatur), argued without direct precedent; the court concedes it knows of no similar case	pp. 9–13, n.7. Hedged in the text (“appear”, “seems”, “seems likely”). Dunlap, J. (CA1) calls the closely related relief sought on appeal “essentially a collateral attack”.
C3	Off-label prescribing is lawful, so the FDCA misbranding theory cannot reach a prescribing hospital.	statute (§§ 396, 353(b)(2)) + circuit precedent (Facteau, Celexa) + agency interpretation (FDA, OLC)	pp. 14–18. Dunlap, J. says the court did not address the manufacturer/distributor and “caused the distribution”/conspiracy theories. The order addresses conspiracy only in n.9 and in the “logically impossible” sentence (p. 16).
C4	§ 353(b)(2) independently exempts the drugs at issue from § 352(f).	statute, applied without contrary authority discussed	p. 17
C5	The subpoena was issued for an improper purpose in bad faith.	record evidence (public Administration statements, ECF 20-1; DOJ’s litigation conduct) + persuasive district-court precedent (seven courts)	pp. 18–19. The analysis there is brief and incorporates other courts’ reasoning; the case-specific conduct findings are in §I. One relied-on decision (QueerDoc) has since been reversed (9th Cir. Aug. 14, 2026).
C6	Full compliance would violate the children’s Fourteenth Amendment informational-privacy right.	precedent recognizing or assuming the right (Whalen; Nelson assumed without deciding; Borucki; Vega-Rodriguez; one D.P.R. case)	pp. 19–22. No balancing test is stated, and the order does not address how a Fourteenth Amendment right constrains the federal government. Dunlap, J. flags both points and calls the ruling “a substantial enlargement” of First Circuit informational-privacy law.
C7	Relief must extend to all minors because a DCYF-only carve-out is infeasible without disclosure.	record (DOJ offered “no adequate answer” at argument) + practical reasoning	pp. 22–23
C8	DOJ misrepresented facts to this court and the Texas court.	record evidence (emails ECF 28-11; Hsiao Decl. ¶ 46; hearing colloquy)	pp. 3–7. These are findings of fact, contested by DOJ on appeal (unverified beyond DOJ’s motion to expedite, which describes RIH’s production as one six-page document).

Concepts

• HIPAA subpoena: the colloquial name for an administrative subpoena under 18 U.S.C. § 3486, issued in investigations of federal health care offenses (n.2).
• quashal vs. vacatur of an order: as the order uses them, quashal acts on the agency’s instrument, and the court treats it as distinct from setting aside a court’s enforcement order (pp. 12, 23).
• collateral attack doctrine: as framed here, rooted in res judicata, and therefore limited by party identity and by the need for a prior opportunity to be heard (pp. 10–13).
• informational privacy: the “individual interest in avoiding disclosure of personal matters” (Whalen, quoted p. 20).

Connections

This is one of a series of challenges to DOJ subpoenas (numbers 25-1431-0xx) to providers of gender-affirming care. The order cites decisions from:

• W.D. Wash. (QueerDoc; No. 25-1431-016);
• D. Mass. (-019);
• D. Colo. (-030);
• D. Md. (Children’s National);
• E.D. Pa. (-014);
• W.D. Pa. (UPMC).

Later history (verified from CourtListener RECAP unless marked):

• N.D. Tex. (No. 4:26-mc-00006-O, O’Connor, C.J.):
  • Apr. 30: enforcement order (ECF 2).
  • May 10: stay denied (ECF 12).
  • May 12: sealed ex parte order (ECF 17). It barred DOJ from revealing further grand-jury or sealed information to RIH, although, by DOJ’s account, the Rhode Island court had ordered DOJ to disclose to RIH’s counsel a redacted Hsiao declaration and grand-jury timing. ECF 18 later addressed the sealing.
  • May 18 (ECF 26): the Texas court read McElroy, J.’s order as binding only DOJ and leaving the Enforcement Order “in effect”. It ordered RIH to deposit “all materials that it would have turned over to the Government” in camera, “inaccessible to the Government for the pendency of the appeals”. It enjoined RIH from seeking relief, or encouraging or cooperating with others seeking relief, “from any other court” except N.D. Tex., the Fifth Circuit or the Supreme Court. It noted that RIH counsel agreed at the May 18 hearing that the Enforcement Order remained in effect.
  • RIH’s May 19 notice (ECF 30) says RIH would make an initial in camera production that night, with rolling productions over “a period of months” (next by May 29). It says any patient information would be anonymized and de-identified “as agreed by the Government on the record during the May 12 hearing”. RIH maintains in the notice that the subpoena is invalid. DOJ’s CA1 notice of related filing quotes the anonymization representation.
  • Later Texas docket entries: unverified (API rate limit).
• Fifth Circuit (No. 26-10431, RIH’s appeal of the Texas enforcement order):
  • May 12: stay pending appeal denied, one-line unpublished order (Stewart, Willett, Wilson, JJ.).
  • The appellant’s brief deadline was extended to Aug. 27, 2026.
  • On July 23, 2026 the docket shows “Additional appeal filed. NOA filed by Appellant Rhode Island Hospital”. What that second notice appeals from is unverified; it may be the May 18 order.
  • No decision as of the last listed entry (Aug. 19, 2026).
• First Circuit (No. 26-1568, DOJ’s appeal of ECF 38/39/44):
  • May 19, 2026: the Child Advocate’s emergency motion for an injunction pending appeal, to stop RIH turning records over to the Texas court, was denied for lack of irreparable harm (Gelpí, Montecalvo, Dunlap, JJ.). The panel set aside the procedural problems, noting the risk of “mutually irreconcilable orders issued by courts in two different federal circuits”. It reasoned that in camera deposit of anonymized records with a court is not the kind of “production” to an adverse party that causes irreparable harm.
  • Dunlap, J., concurring, questioned the Child Advocate’s standing and redressability, and said the requested relief was effectively a collateral attack on the Texas order: “little more than sophistry” to frame it otherwise. He also said the district court:
    • failed to analyze DOJ’s manufacturer/distributor and caused-distribution/conspiracy theories;
    • did not explain how a Fourteenth Amendment right limits the federal government;
    • substantially enlarged circuit precedent on informational privacy.
  • DOJ moved to expedite (May 22). Briefing, amicus briefs (Former DOJ Attorneys; National Center for Youth Law) and a DOJ reply followed (Aug. 4).
  • 28(j) letters on QueerDoc: DOJ Aug. 17; Child Advocate Aug. 18, arguing that QueerDoc left patient-privacy objections open and conflicts with First Circuit clear-error review of purpose under Gertner. RIH responded Aug. 21.
  • Oral argument is calendared for Oct. 7, 2026, in Boston in the en banc courtroom. On the listing, this is a calendaring location, not an en banc grant.
  • No First Circuit merits decision as of Sept. 25, 2026.

Relation to the Texas order, in short: two circuits hold live, facially conflicting district orders on one subpoena. Texas says enforce, and records are now held in camera there. Rhode Island says the subpoena is quashed and DOJ may not seek or receive the records. Each court frames its order so as not to vacate the other’s. Neither appellate court had resolved the conflict as of the last docket entries I could see.

Bearing on the record

The order bears on government compelled access to health records and on the constitutional right to informational privacy. Its remedy reasoning is that segregating a protected subgroup can itself disclose membership in that group. That point is a familiar one in data de-identification and is stated here as a legal finding. It carries no instruction for ML practice, so there is nothing for the Anthology of the SOTA. For a privacy or data-governance reading in this record, cite it with its appellate status. Do not cite it as settled law on informational privacy or on § 3486 purpose review.

Limitations

• It is a district-court order on an expedited timetable. The court ruled one day after the hearing and one day before the Texas compliance deadline.
• Its collateral-attack analysis is expressly tentative (“appear”, “seems”, “seems likely”), and the court says it knows of no analogous case.
• The informational-privacy holding does not state a balancing standard or address federal (rather than state) action. It relies on a right the Supreme Court has only assumed (Nelson).
• The improper-purpose ground largely adopts other courts’ reasoning, and at least one of those courts has since been reversed on that ground.
• The order’s rhetoric about DOJ, including the footnote quoting the Texas judge’s Federalist Society remarks on forum shopping (n.1), goes beyond what the holdings require. The court says its “decision is based solely on its application of the law”.
• Citation errors: § 3846 on p. 12, and the date of Texas ECF 12.
• The order does not resolve the conflict with the Texas order. It left RIH subject to both, and the later Texas and First Circuit orders show that the conflict continued.

Open questions

• Will the First Circuit affirm any of the three grounds? The Dunlap concurrence and QueerDoc suggest the purpose-based grounds are the most exposed. The Child Advocate is pressing the privacy ground as independent. The decision after the Oct. 7, 2026 argument will settle this.
• How will the Fifth Circuit rule on the enforcement order and on the RIH July notice of appeal? Unverified.
• What happens to the in camera records if the circuits disagree? Only a Supreme Court decision, or one side’s appeal failing, seems likely to resolve that; this is speculative.
• What is the status of the other six decisions the order relied on? Unverified. A Fourth Circuit appeal in Children’s National exists (No. 26-1104), but I did not check its docket.

Corrections to the seeded skim

• The operative version is ECF 44, not ECF 38. RIH moved for clarification on May 14 (ECF 41). It pointed out that p. 2 (“enjoins the DOJ from seeking or receiving any documents related to this now invalid subpoena”) and p. 24 (the narrower PHI-focused injunction) could be read differently. The court entered an amended Memorandum and Order the same day (ECF 44, dated May 14, 2026). By my diff, the only substantive change is the injunction on p. 24: “ENJOINED from seeking, receiving, using, retaining, or disseminating … including but not limited to all materials responsive to Requests 11 through 15 …”. It adds “seeking” and “but not limited to”; the rest is grammatical cleanup. The court did not adopt RIH’s proposed broader language (“any records responsive” and “any other minors in the care of RIH”). DOJ appealed both ECF 38/39 (ECF 43) and ECF 44 (ECF 46). The later courts (N.D. Tex. ECF 26; the CA1 concurrence) cite ECF 44.
• The dossier’s date is wrong. It says “published: 2026-05-01”. The order was filed and signed May 13, 2026; the amended order is dated May 14.
• The dossier’s description of the injunction is imprecise. The dossier says DOJ is enjoined from “receiving, using, retaining or disseminating patient-identifying information”. That is the ECF 38 text; ECF 44 adds “seeking”. The opening line on p. 2 states the relief more broadly (“seeking or receiving any documents related to this now invalid subpoena”) than the decretal paragraph does.
• The order’s citation for the Texas stay denial has the wrong date. The order cites the Texas court’s stay denial as “No. 4:26-MC-0006-O (N.D. Tex. Apr. 30, 2026), ECF No. 12” (p. 7). The N.D. Tex. docket shows ECF 12 is an Opinion and Order dated May 10, 2026, and DOJ’s CA1 motion also dates it May 10. The error carries into ECF 44.
• A statutory citation in the order has a typo. The order cites “18 U.S.C. § 3846” on p. 12 for DOJ’s subpoena authority; elsewhere (pp. 2, 3, 14) it is § 3486. The typo is uncorrected in ECF 44.
• “Seven other federal courts” needs a qualifier now. The court followed seven courts that found these subpoenas issued for an improper purpose (p. 19). One of them, QueerDoc, PLLC v. DOJ (W.D. Wash.), was reversed and remanded by the Ninth Circuit on Aug. 14, 2026 (No. 25-7384, Bea, J.; Paez, J., dissenting). I verified the reversal from the opinion attached to DOJ’s 28(j) letter. The Ninth Circuit held that the executive’s public opposition to gender-affirming care does not show bad faith. I have not verified the status of the other six decisions. A Fourth Circuit appeal in the Children’s National matter exists (No. 26-1104, docketed Feb 2, 2026); its outcome is unverified.
• The dossier’s list of standing cases is incomplete. Besides Children’s National and UPMC, the order grounds standing in First Choice Women’s Res. Ctrs. v. Davenport (U.S. Apr. 29, 2026) for the proposition that burdening constitutional rights is an injury (p. 8). Minor point.