In-Camera Court Custody of Subpoenaed Medical Records Defeats “Irreparable Harm” for an Injunction Pending Appeal

1. Introduction

This First Circuit order arises from an unusual, fast-moving, multi-forum dispute over a federal administrative subpoena issued by the Department of Justice (“DOJ”) to Rhode Island Hospital (the “Hospital”) under 18 U.S.C. § 3486. The subpoena sought sensitive pediatric medical records, including personally identifying information and personal health information relating to children who received gender-affirming care.

After negotiations over compliance, the DOJ sought (ex parte) enforcement in the Northern District of Texas, which ordered compliance (the “April Texas Order”). The Hospital sought a stay and appealed to the Fifth Circuit, where the appeal remained pending. Shortly thereafter, the Child Advocate for the State of Rhode Island (a state official charged with protecting children’s legal rights in state care) moved to quash the same subpoena in the District of Rhode Island. That court granted the motion (the “Rhode Island Order”), quashing the subpoena and enjoining the DOJ from seeking or receiving patient-identifying or protected health information responsive to it.

The Northern District of Texas then issued a further order (the “May Texas Order”) directing the Hospital to deliver responsive records to the Texas court for in camera safekeeping pending the outcomes of the parallel appeals in the Fifth and First Circuits. The Child Advocate asked the First Circuit for an injunction pending appeal barring the Hospital from turning over the records to anyone, including the Texas court.

The central issue before the First Circuit was not the ultimate validity of the subpoena, but whether the Child Advocate satisfied the stringent requirements for the “extraordinary” remedy of an injunction pending appeal—particularly the requirement of irreparable harm.

2. Summary of the Opinion

The First Circuit denied the Child Advocate’s motion for an injunction pending appeal. Applying the established four-factor test, the court held that the Child Advocate failed to demonstrate irreparable injury, a “necessary threshold” showing.

The court emphasized that the May Texas Order required delivery of records to a court for in camera custody and explicitly provided that the DOJ would receive the records only if the courts of appeals ruled against the Hospital. The Child Advocate’s argument—that any compelled production of sensitive medical records causes irreparable harm—was rejected because the cited authority involved production to (and review by) an adverse party, not temporary custody by a court pending appeal.

Judge Dunlap concurred, agreeing that irreparable harm was not shown, and further underscoring substantial concerns about (i) standing/redressability, (ii) the request’s practical effect as a collateral attack on an out-of-circuit order, and (iii) serious merits questions about the Rhode Island district court’s approach to subpoena enforcement and informational privacy.

3. Analysis

A. Precedents Cited

1) The injunction-pending-appeal framework and the centrality of irreparable harm

  • Nken v. Holder, 556 U.S. 418 (2009): The court invoked Nken for two key propositions: (i) an injunction pending appeal is “extraordinary” relief, and (ii) the four-factor test governs. The order’s analysis tracks Nken’s insistence that irreparable harm is indispensable in this posture.
  • Respect Me. PAC v. McKee, 622 F.3d 13 (1st Cir. 2010): Provided the First Circuit’s standard four-factor formulation and, critically, the statement that the first two factors are “the most critical” and that without irreparable injury, injunctive relief cannot issue. The panel treated this as controlling circuit guidance.
  • Bos. Parent Coal. for Acad. Excellence Corp. v. Sch. Comm. of City of Bos., 996 F.3d 37 (1st Cir. 2021) and Together Emps. v. Mass Gen. Brigham Inc., 19 F.4th 1 (1st Cir. 2021): Cited in the concurrence to emphasize the “heavy burden” on a movant seeking interim appellate injunctive relief and the demanding “strong showing” standard.
  • Charlesbank Equity Fund II v. Blinds to Go, Inc., 370 F.3d 151 (1st Cir. 2004): Used by the concurrence to frame irreparable harm as a “necessary threshold showing” for preliminary injunctive relief—reinforcing the panel’s dispositive reliance on that factor.

2) What counts as irreparable harm in medical-record subpoena disputes

  • Nw. Mem'l Hosp. v. Ashcroft, 362 F.3d 923 (7th Cir. 2004): The Child Advocate relied on this decision for the notion that compelled production of sensitive medical records can itself impose psychological and institutional harms. The First Circuit distinguished it on a decisive factual axis: the Seventh Circuit addressed disclosure to and review by an adverse party, whereas the May Texas Order required delivery to a court for in camera safekeeping with assurances against dissemination unless the appeals are lost. The First Circuit found no authority extending Nw. Mem'l Hosp. to the “court-only, in camera, pending appeal” scenario.

3) Standing, redressability, and third-party standing (concurrence)

  • FDA v. All. for Hippocratic Med., 602 U.S. 367 (2024): Cited for the proposition that standing requires an injury likely to be redressed by the requested relief. The concurrence reasoned that the First Circuit could not readily redress the asserted injury because the requested injunction would operate as a functional stay of a Texas court’s order—relief properly sought in Texas or the Fifth Circuit.
  • Kowalski v. Tesmer, 543 U.S. 125 (2004): Quoted for third-party standing requirements (“close relationship” and “hindrance”). The concurrence highlighted that the First Circuit had not yet held the Child Advocate has standing to sue in federal court on behalf of Rhode Island minors, noting limited lower-court treatment: Off. of the Child Advoc. on Behalf of Doe v. Providence Pub. Sch. Dep't, No. 25-cv-649-JJM-AEM, 2026 WL 1068031 (D.R.I. Apr. 20, 2026) and Off. of Child Advoc. v. Lindgren, 296 F. Supp. 2d 178 (D.R.I. 2004).

4) Appellate procedure and forum constraints (concurrence)

  • Rhode Island v. Trump, 155 F.4th 35 (1st Cir. 2025): Cited for procedural expectations and the “strong showing” standard (quoting Nken) and also to emphasize that the Child Advocate did not first seek relief in the district court as contemplated by Fed. R. App. P. 8.
  • 28 U.S.C. § 1294(1): The concurrence cited the statute to underscore the jurisdictional reality that the First Circuit does not have appellate authority over the Northern District of Texas.

5) Collateral attack, comity, and respecting coordinate courts (concurrence)

  • Verogna v. Johnstone, 583 F. Supp. 3d 331 (D.N.H. 2022), aff'd, No. 22-1364, 2022 WL 19795808 (1st Cir. Nov. 14, 2022): Quoted for the principle that disagreements with rulings are for appeal, not collateral litigation.
  • Pratt v. Ventas, Inc., 273 B.R. 108 (W.D. Ky. 2002), aff'd, 365 F.3d 514 (6th Cir. 2004): Cited to distinguish the collateral attack doctrine from res judicata, warning against conflating the two.
  • In re Iannochino, 242 F.3d 36 (1st Cir. 2001): Used to describe the “sufficient identicality” requirement for res judicata, while questioning whether collateral-attack principles may extend beyond strict party identity in this context.
  • Celotex Corp. v. Edwards, 514 U.S. 300 (1995): Quoted for the proposition that orders of a court of first instance must be respected unless and until reversed by orderly review—supporting the concurrence’s concern that the requested injunction would undercut the Texas court’s order.
  • UtahAmerican Energy, Inc. v. Dep't of Labor, 685 F.3d 1118 (D.C. Cir. 2012): Cited for the idea that comity and orderly administration of justice counsel the second-filed case to proceed with due regard for the first-filed action.

6) Subpoena enforcement as “summary” and the limited role of merits litigation (concurrence)

  • United States v. Sturm, Ruger & Co., 84 F.3d 1 (1st Cir. 1996): Central to the concurrence’s merits critique: subpoena enforcement is “summary in nature,” and subpoenas should be enforced if the agency’s assertion of authority is not “obviously apocryphal.” This precedent frames enforcement proceedings as ill-suited for fully litigating the underlying substantive merits of an agency theory.
  • U.S. Dep't of Just. v. Ricco Jonas, 24 F.4th 718 (1st Cir. 2022): Reinforced the deferential enforcement posture described in Sturm, Ruger & Co.
  • United States v. Am. Target Advert., Inc., 257 F.3d 348 (4th Cir. 2001): Cited as additional authority that subpoena enforcement is not the proper mechanism to litigate the underlying merits of the investigation.
  • United States v. Facteau, 89 F.4th 1 (1st Cir. 2023) and In re Celexa & Lexapro Mktg. & Sales Pracs. Litig., 915 F.3d 1 (1st Cir. 2019): The concurrence referenced these to critique the Rhode Island district court’s narrow focus on one FDCA theory (off-label prescribing by practitioners), while (in the concurrence’s view) not analyzing alternative FDCA theories involving manufacturers/distributors and related causal or conspiratorial theories.
  • United States v. Gertner, 65 F.3d 963 (1st Cir. 1995): Cited for the proposition that if the government’s theories are valid, the district court’s “improper purpose” reasoning would “fall away,” implying the impropriety analysis is tethered to the perceived legal viability of the investigative purpose.

7) Informational privacy skepticism (concurrence)

  • United States v. García-Carrasquillo, 483 F.3d 124 (1st Cir. 2007): Cited to question the district court’s reasoning about how a Fourteenth Amendment informational-privacy right “limits the federal government.”
  • Borucki v. Ryan, 827 F.2d 836 (1st Cir. 1987): Cited as First Circuit authority showing the limited and cautious development of informational privacy doctrine.
  • NASA v. Nelson, 562 U.S. 134 (2011): Cited for the Supreme Court’s approach of “assuming, without deciding” that a right to informational privacy exists—supporting the concurrence’s view that the Rhode Island district court’s constitutional holding may represent a substantial expansion.

B. Legal Reasoning

1) The panel’s holding: no irreparable harm from in camera court custody pending appeal

The panel applied the First Circuit’s four-factor test for injunctions pending appeal and resolved the motion at the irreparable-harm step. The decisive factual premise was the May Texas Order’s protective architecture: the records were to be delivered to a court, held in camera, and withheld from the DOJ unless and until the appellate courts ruled against the Hospital.

The Child Advocate’s argument treated compelled production as inherently harmful. The panel rejected that categorical approach in this procedural configuration, distinguishing between (i) disclosure to an adverse party (where dissemination and use are immediate risks) and (ii) interim custodial transfer to a neutral tribunal under an explicit nondissemination assurance. With no cited authority establishing irreparable harm on these facts, the “extraordinary” relief was unavailable.

2) Procedural and structural obstacles (expressly noted, but set aside, by the panel)

The panel stated it was “set[ting] aside a host of procedural problems,” including: (a) whether the Child Advocate could obtain an injunction against the Hospital that would place it under mutually irreconcilable orders from different circuits; (b) whether the requested injunction would be an impermissible collateral attack on the May Texas Order; and (c) whether relief could be sought directly from the court of appeals without first moving in the district court under Fed. R. App. P. 8(a)(2). Even with these issues bracketed, the motion failed for lack of irreparable harm.

3) The concurrence’s additional logic: redressability, jurisdiction, comity, and the nature of subpoena enforcement

Judge Dunlap would have placed more weight on threshold and structural limits. He highlighted: (i) potential standing deficiencies—particularly redressability—because the requested relief functionally sought to undo or neutralize an out-of-circuit order; (ii) the jurisdictional reality that the First Circuit cannot review the Northern District of Texas under 28 U.S.C. § 1294(1); and (iii) the collateral-attack/comity principle that coordinate-court orders should be respected until reversed through orderly review.

He also previewed merits vulnerabilities in the Rhode Island Order, emphasizing First Circuit doctrine that subpoena enforcement is summary and not the proper venue to litigate the full merits of an agency’s investigative theory (United States v. Sturm, Ruger & Co.; U.S. Dep't of Just. v. Ricco Jonas), and suggesting the district court may have improperly narrowed its analysis of potential FDCA theories while simultaneously expanding constitutional informational privacy doctrine beyond cautious precedent (Borucki v. Ryan; NASA v. Nelson).

C. Impact

  • Concrete refinement of “irreparable harm” in sensitive-record cases: The order establishes (at least for interim-relief purposes in the First Circuit) that a movant cannot assume irreparable harm from compelled transfer of sensitive medical records where the transfer is to a court for in camera safekeeping under nondissemination assurances pending appeal. The distinction between “production to an adverse party” and “custody by a court” is the opinion’s operative rule.
  • Signals caution against cross-circuit end-runs: Although the panel did not decide the procedural objections, both the order and concurrence telegraph skepticism toward appellate injunctions that would force a nonparty to violate an out-of-circuit order, effectively creating inter-circuit conflict.
  • Influence on future subpoena fights involving minors’ health records: Litigants seeking emergency appellate relief will likely need to present specific evidence of dissemination risk or inability to “unring the bell,” not merely generalized psychological or institutional harms—especially when a court can mitigate exposure through in camera procedures.
  • Merits “warning shot” regarding informational privacy and subpoena enforcement posture: The concurrence’s merits discussion may shape subsequent appellate briefing: it frames the Rhode Island Order as potentially out of step with (i) summary enforcement norms and (ii) the cautious, unsettled status of informational privacy doctrine.

4. Complex Concepts Simplified

  • “Injunction pending appeal”: A temporary order issued while an appeal is ongoing, meant to prevent harm before the appellate court can decide the case. Courts treat it as extraordinary and require strict proof.
  • “Irreparable harm”: Harm that cannot be adequately fixed later (e.g., by winning the appeal or receiving damages). If the harm can be prevented or undone through safeguards—like sealing and in camera custody—courts may find it not irreparable.
  • “In camera”: Materials are provided privately to a judge/court, not to the public or the opposing party, typically under seal and with strict limits on access.
  • “Collateral attack”: Trying to undermine or negate a court order indirectly in a different proceeding, rather than challenging it through the normal appellate path in the issuing court’s circuit.
  • “Redressability” (standing): A plaintiff must show the requested court order is likely to fix the claimed injury. If the injury flows from another court’s order outside the deciding court’s authority, redressability becomes doubtful.
  • “Subpoena enforcement is summary in nature”: Courts typically do not fully adjudicate the underlying merits of an investigation when deciding whether to enforce a subpoena; they generally ask whether the subpoena is within authority, relevant, and not obviously improper.

5. Conclusion

The First Circuit’s order denies emergency appellate injunctive relief because the Child Advocate failed to show irreparable harm where subpoenaed sensitive medical records were to be delivered only to a court for in camera safekeeping, with explicit assurances against dissemination to the DOJ unless the appeals are lost. The concurrence reinforces that such emergency motions may also founder on standing/redressability, jurisdictional limits, and anti-collateral-attack principles—while cautioning that subpoena enforcement proceedings are generally summary and that expansive constitutional informational-privacy rulings may face substantial appellate headwinds.