The Food and Drug Administration opened an investigation of medical facilities that prescribe "off label" drugs to minors with gender dysphoria. The FDA has not determined if the use of these drugs for these purposes is safe or effective to treat gender dysphoria. The investigation began before the U.S. District Court for the Northern District of Texas. In July 2025, the Assistant Attorney General issued a HIPAA subpoena on Rhode Island Hospital (which includes Brown University Health) to determine if patients received misbranded drugs. The hospital, however, refused to comply with the subpoena.
On April 30, 2026, DOJ filed a petition to enforce the subpoena with the District Court in NDTX. That same day, Chief Judge O'Connor granted the government's petition. He ordered Rhode Island Hospital to provide all records within fourteen days.
On May 6, Rhode Island Hospital filed a notice of appeal to the Fifth Circuit, and the next day filed an emergency motion to stay. Among other arguments, Rhode Island argued that venue was not proper in NDTX. The government countered that venue was proper because there is an active investigation being carried out in NDTX. On May 10, Judge O'Connor denied the motion for an emergency stay. He found that venue was proper:
Second, RIH argues that this Court is not the proper venue to adjudicate the Government's petition.7 Title 18 U.S.C. § 3486(c) permits enforcement of an administrative subpoena in "any court of the United States within the jurisdiction of which the investigation is carried on or of which the subpoenaed person is an inhabitant, or in which he carries on business or may be found." According to the Declaration from the Acting Director of the Enforcement and Affirmative Litigation Branch there is substantial operational and decision-making control of the investigation being exercised at the U.S. Attorney's Office in the Northern District of Texas, along with several subjects and potential targets of the investigation located therein.8 The record therefore reflects that the investigation is being carried on in the Northern District of Texas and the Government's enforcement petition was properly brought in this Court. Accordingly, RIH has failed to show a likelihood of success on the merits as to its venue challenge.
FN8: 8 See generally Hsiao Declaration (Sealed) Ex. 1, ECF No. 10-1. The Government has presented the Court with ex parte information that supports its choice to enforce the subpoena in this Court and due to the sensitive nature of that information, it was provided ex parte. See In re Grand Jury Subpoena, 419 F.3d 329 (5th Cir. 2005) (finding no abuse of discretion where the district court relied on the government's ex parte submission in reaching its decision).
That was the litigation in Texas. But there was a parallel track on the other side of the country. On May 4, even before Rhode Island Hospital filed an emergency motion before Judge O'Connor, the Child Advocate for the State of Rhode Island (a non-profit) filed an emergency motion in the District of Rhode Island to quash the subpoena. On May 7, the United States filed a motion to stay or transfer venue. The court immediately denied that motion with a text order. On May 11, the District Court granted Rhode Island Hospital's motion to intervene. The group then filed an emergency motion to quash the subpoena. Judge McElroy ordered the United States to submit the sealed Hsiao declaration.
Back in Texas, on May 11, the United States informed Judge O'Connor that the government intended to comply and provide the sealed Hsiao Declaration. On May 12, Judge O'Connor ordered that the government could not release the sealed information to the parties:
However, the Government now seeks to disclose sensitive information to a party here—but in a seemingly parallel litigation—without having shown why the sealed or protected matters should be provided to it nor how that information would be protected. In fact, the Government's representation that it does not know what protections the information related to the grand jury proceedings or sealed information in the matter pending here will receive in the Rhode Island court cuts against disclosing it. In light of grand jury proceedings' dependency on heightened secrecy, the basis for sealing declarations, and the Government's failure to show that the information that it requests leave to disclose would be protected, the Court would be derelict in its obligation to hew strictly to Rule 6(e)'s exception, and undermine the reasons given for sealing, by granting the Motion as requested. Accordingly, it is ORDERED that the Government is prohibited from revealing any further sealed information or information concerning the grand jury investigation until it can show that "a particularized need" exists for the materials that outweighs the basis for and policy of secrecy. Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400 (1959)). The Government shall immediately distribute this Order to all members within or connected to this investigation, notifying them of the prohibitions set out herein and their obligation to comply with them. The Government may distribute a copy of this Order to the Rhode Island court.
But Judge O'Connor allowed the government to share the declaration with Judge McElroy in chambers.
The Court granted the Government's previous motion to disclose information related to the grand jury's existence because the Government specified that such information would be confined to in camera review by the Rhode Island court. That disclosure permitted the Government to disclose to the Rhode Island court that there is a legitimate investigation pending in this district, and responsive documents are due. Indeed, the Court has concluded as such, granted the Government's motion to enforce an administrative subpoena, and is superintending this matter.2 Were Rhode Island Hospital entitled to further sealed or secret information it may always move this Court for such access upon a proper showing.
On May 13, Judge McElroy issued a 24-page opinion granted the motion to quash the subpoena from NDTX and enjoined DOJ from seeking or receiving any documents pursuant to the subpoena. Judge McElroy was apparently shown the materials, but was not persuaded. She did not reference the sealed declaration. Judge McElroy acknowledged her order was completely unprecedented:
The Court is unaware of any similar case where a party has petitioned a court to quash an administrative subpoena that another court ordered enforced without prior notice or opportunity to be heard.
But she did it anyway. Indeed, Judge McElrod took a shot at Judge O'Connor:
The United States Department of Justice ("DOJ") possesses immense prosecutorial authority and discretion. As citizens, we trust that federal prosecutors, when wielding this awesome power against a state, a company, or certainly against vulnerable children, will play fair and be honest with its counterparts and the judiciary. DOJ has proven unworthy of this trust at every point in this case. It has misrepresented and withheld information to both this Court and the United States District Court for the Northern District of Texas (the "Texas court"). It did so in an obvious effort to shield it's recent investigative tactics—previously rejected by every other court to review them—from this Court's review, in favor of a distant forum that DOJ deems friendly to its political positions.1
FN1: 1 The presiding judge in the Texas court has branded "the Department of Justice, the world's largest law firm" a "frequent forum shopper." Opening Remarks from Judge Reed O'Connor [2024 TX Chapters Conference], The Federalist Society (Oct. 22, 2024), https://www.youtube.com/watch?v=HMTt9pxWBhA [https://perma.cc/GR7A-H6N8]. It is clear that the DOJ has done so here.
I attended Judge O'Connor's speech in 2024. The purpose of his remarks was to show that all litigants engage in forum shopping, including the Biden DOJ. This snippet takes Judge O'Connor's comments out of context. Here are the full remarks:
Just this year, in response to political pressure that named specific judges, the Judicial Conference took aim at single-judge divisions, especially those in Texas. Appearing to cave to criticism from commentators and political officials, this Judicial Conference proposal rejects the idea that there are no partisan judges—only judges doing their level best to faithfully apply the law to reach the correct decision.
Notably, the proposal did not target longstanding forum-shopping—or as Judge Jim Ho put it, forum-selling—in bankruptcy courts or patent venues. Such cases impact our economy in the billions of dollars and were recently highlighted only due to an embarrassing scandal. Yet the practice in these areas remain untouched by reform efforts given the absence of comparable political pressure from commentators and political officials.
Instead, the proposal focused entirely on remedies the Department of Justice, the world's largest law firm and regular forum shopper, complained of—that is, injunctions and vacaturs. The reason for this was clear: the Judicial Conference was responding to external political criticism.
It takes some cheek for a District Judge in Rhode Island to accuse others of engaging in forum shopping. I've lost count of the number of anti-Trump actions filed in Boston, Rhode Island, and other places, that have no actual connection to New England, other than the fact that the First Circuit is a very friendly venue. Did Judge McElroy blink twice about why a case called California v. Department of Education was filed in Boston? Or when Judge Boasberg ordered a plane taking off from Texas to turn around? For whatever it is worth, it is far more likely for a nexus to be found in the Northern District of Texas than in Rhode Island. You could fit the entire state of Rhode Island in the DFW Metroplex, and you could fit the city of Providence inside the bounds of the DFW airport.
On May 14, today, Judge O'Connor unsealed his March 12 order, which indicated the materials could be shared with Judge McElroy.
So here we are. A District Court judge in Texas ordered that a subpoena must be complied with. A District Judge in Rhode Island quashed that subpoena. We now have a conflict that cuts to the heart of federal power. Perhaps not since the Dorr Rebellion, which gave rise to Luther v. Borden, has a Rhode Islander thrown such a wrench into our federal system of government. During the first Trump administration, I wrote about the prospect of dueling nationwide injunctions. Now, we have dueling transdistrict fights over transgender subpoenas.
Appeals will be mounted to the Fifth and First Circuits at the same time. I know a bit about this sort of conflict. For some time, I've been involved with litigation concerning Defense Distributed. Since 2018, we have been stuck in a quagmire: the District Court in Austin transferred the case to New Jersey, the Fifth Circuit asked the New Jersey court to return the case, the New Jersey court said no, and the en banc Third Circuit declined to interfere. (Stay tuned on what comes next in this case.)
I suspect the Supreme Court will have to settle this subpoena fight at some point.
Update: I updated the passages concerning the unsealing of materials.
