QUEERDOC, PLLC V. DOJ - UNITED STATES DEPARTMENT OF JUSTICE

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

QUEERDOC, PLLC,

Plaintiff - Appellee,

v.

DOJ - UNITED STATES
DEPARTMENT OF JUSTICE,

Defendant - Appellant.
No. 25-7384
D.C. No.
2:25-mc-00042-
JNW

OPINION

Appeal from the United States District Court
for the Western District of Washington
Jamal N. Whitehead, District Judge, Presiding

Argued and Submitted March 6, 2026
Seattle, Washington

Filed August 14, 2026

Before: Richard A. Paez, Carlos T. Bea, and Daniel A.
Bress, Circuit Judges.

Opinion by Judge Bea;
Dissent by Judge Paez

2 QUEERDOC, PLLC V. USDOJ
SUMMARY
*

Administrative Subpoena

The panel reversed the district court’s order quashing in
its entirety an administrative subpoena issued by the United
States Department of Justice (DOJ) to QueerDoc pursuant to
the Health Insurance Portability and Accountability Act
(HIPAA), which authorizes the Attorney General or his
designee to issue a subpoena in any investigation of a federal
health care offense, and remanded for further proceedings.
QueerDoc is a telehealth provider of gender affirming
care that treats patients, including minors, who suffer from
gender dysphoria. Patients of QueerDoc may be diagnosed
with gender dysphoria and prescribed puberty blockers and
cross-sex hormones.
Following President Trump signing Executive Order
14,168, which declared that the United States “recognize[s]
two sexes, male and female,” and that “[t]hese sexes are not
changeable[,]” and Executive Order 14,187, which declared
that the federal government would not “fund, sponsor,
promote, assist, or support the so-called ‘transition’ of a
child from one sex to another[,]” DOJ issued an
administrative subpoena to QueerDoc ordering QueerDoc to
produce various documents necessary for the investigation
of potential violations of federal health care laws. The
district court quashed the subpoena in its entirety, finding the
subpoena unenforceable because DOJ had issued it for an

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

QUEERDOC, PLLC V. USDOJ 3
“improper purpose”: to achieve the President’s policy
objective of “eliminating gender-affirming care.”
The panel held that DOJ issued the administrative
subpoena pursuant to statutory authority because 1) HIPAA
permits investigations for potential violations of the Federal
Food, Drug, and Cosmetic Act’s misbranding prohibitions;
2) DOJ complied with HIPAA’s procedural requirements;
and 3) the subpoena requests were relevant to an authorized
investigation under HIPAA.
The panel next held that QueerDoc did not meet its heavy
burden of showing that the subpoena was issued for an
improper purpose. Consistent with the presumption of
regularity and the high standard required to quash an
administrative subpoena on improper purpose grounds, the
Executive Branch’s public opposition to “gender-affirming
care” is insufficient to show that an agency within the
Executive Branch issued an otherwise permissible HIPAA
subpoena in bad faith. The President may direct DOJ to
exercise its statutory authority in a manner that aligns with
his broader policy goals.
Because the district court decided only that the subpoena
was motivated by an improper purpose and did not rule on
QueerDoc’s arguments that DOJ’s subpoena is overbroad
and poses an undue burden, the panel remanded for the
district court to consider those issues the first instance.
Dissenting, Judge Paez wrote that the district court’s
finding that DOJ issued the subpoena to QueerDoc in bad
faith was not clearly erroneous. Considering the information
properly before the district court at the time it rendered its
decision, the government failed to satisfy its prima facie
burden of showing the information subpoenaed was relevant
and material to its purported investigatory purpose. Even if

4 QUEERDOC, PLLC V. USDOJ
the government satisfied its prima facie burden, the district
court’s decision to quash the subpoena should be affirmed
because ample evidence supports its finding that the
subpoena was issued in bad faith.

COUNSEL
Paula Ramer (argued) and Marcus A. Asner, Arnold &
Porter Kaye Scholer LLP, New York, New York; Taylor B.
Graham, Arnold & Porter Kaye Scholer LLP, Denver,
Colorado; Benjamin C. Mizer and Samuel D. Kleinman,
Arnold & Porter Kaye Scholer LLP, Washington, D.C.;
Jaclyn Machometa, Arnold & Porter Kaye Scholer LLP,
Boston, Massachusetts; Jonathan P. Hawley, David B.
Robbins, and Harry H. Schneider Jr., Ashurst Perkins Coie
LLP, Seattle, Washington; Adrien Leavitt and La Rond
Baker, American Civil Liberties Union of Washington,
Seattle, Washington; David B. Robbins, Perkins Coie LLP,
Seattle, Washington; for Plaintiff-Appellee.
Sarah Welch (argued) and Bradley Hinshelwood, Attorneys;
Abigail Stout, Counsel to the Assistant Attorney General;
Yaakov M. Roth, Principal Deputy Assistant Attorney
General; Civil Division; Brett A. Shumate, Assistant
Attorney General; United States Department of Justice,
Washington, D.C.; for Defendant-Appellant.
Kohsei Ugumori, Attorney, Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; Miriam Rosenbaum and Wendy
R. Weiser, Brennan Center for Justice at NYU School of
Law, New York, New York; Joseph Gaeta, Brennan Center
for Justice at NYU School of Law, Providence, Rhode

QUEERDOC, PLLC V. USDOJ 5
Island; Jonah M. Knobler, Caitlin Ross, Bharath Palle, and
Gregory L. Diskant, Patterson Belknap Webb & Tyler LLP,
New York, New York; for Amici Curiae Former U.S.
Department of Justice Attorneys.
David M. Zinn, Christopher N. Manning, Dana B. Kinel,
Patrick C. Hynds, and Amy M. Saharia, Williams &
Connolly LLP, Washington, D.C.; Jeffrey B. Coopersmith,
Corr Cronin LLP, Seattle, Washington; for Amicus Curiae
Seattle Children's Hospital.
Lauryn K. Fraas, Assistant Attorney General; William D.
McGinty and Cristina Sepe, Deputy Solicitors General;
Nicholas W. Brown, Washington Attorney General; Office
of the Washington Attorney General, Olympia, Washington;
Adam M. Cambier, Morgan Carmen, and Jak Kundl,
Assistant Attorneys General; Allyson Slater, Director,
Reproductive Justice Unit; Andrea J. Campbell,
Massachusetts Attorney General; Office of the
Massachusetts Attorney General, Boston, Massachusetts;
Rob Bonta, California Attorney General, Office of the
California Attorney General, Oakland, California; William
Tong, Connecticut Attorney General, Office of the
Connecticut Attorney General, Hartford, Connecticut;
Kristin K. Mayes, Arizona Attorney General, Office of the
Arizona Attorney General, Phoenix, Arizona; Philip J.
Weiser, Colorado Attorney General, Office of the Colorado
Attorney General, Denver, Colorado; Brian L. Schwalb,
District of Columbia Attorney General, Office of the District
of Columbia Attorney General, Washington, D.C.; Kathleen
Jennings, Delaware Attorney General, Office of the
Delaware Attorney General, Wilmington, Delaware;
Kwame Raoul, Illinois Attorney General, Office of the
Illinois Attorney General, Chicago, Illinois; Aaron M. Frey,
Maine Attorney General, Office of the Maine Attorney

6 QUEERDOC, PLLC V. USDOJ
General, Augusta, Maine; Anthony G. Brown, Maryland
Attorney General, Office of the Maryland Attorney General,
Baltimore, Maryland; Dana Nessel, Michigan Attorney
General, Office of the Michigan Attorney General, Lansing,
Michigan; Keith Ellison, Minnesota Attorney General,
Office of the Minnesota Attorney General, St. Paul,
Minnesota; Aaron D. Ford, Nevada Attorney General, Office
of the Nevada Attorney General, Carson City, Nevada;
Jennifer Davenport, Acting New Jersey Attorney General;
Office of the New Jersey Attorney General, Newark, New
Jersey; Raúl Torrez, New Mexico Attorney General, Office
of the New Mexico Attorney General, Santa Fe, New
Mexico; Letitia James, New York Attorney General, Office
of the New York Attorney General, New York, New York;
Dan Rayfield, Oregon Attorney General, Office of the
Oregon Attorney General, Salem, Oregon; Peter F. Neronha,
Rhode Island Attorney General, Office of the Rhode Island
Attorney General, Providence, Rhode Island; Charity R.
Clark, Vermont Attorney General, Office of the Vermont
Attorney General, Montpelier, Vermont; Joshua L. Kaul,
Wisconsin Attorney General, Office of the Wisconsin
Attorney General, Madison, Wisconsin; for Amici Curiae
Washington, Massachusetts, Arizona, California, Colorado,
Connecticut, Delaware, District of Columbia, Illinois,
Maine, Maryland, Michigan, Minnesota, Nevada, New
Jersey, New Mexico, New York, Oregon, Rhode Island,
Vermont, and Wisconsin.
Amy Whelan, National Center For LGBTQ Rights,
Sacramento, California; Jennifer L. Levi and Donovan C.
Bendana, GLBTQ Legal Advocates & Defenders, Boston,
Massachusetts; for Amici Curiae National Center for
LGBTQ Rights, National Center for Youth Law, and
GLBTQ Legal Advocates & Defenders.

QUEERDOC, PLLC V. USDOJ 7
Joel McElvain and Alethea A. Swift, Democracy Forward
Foundation, Washington, D.C., for Amicus Curiae
American Academy of Pediatrics.
Karen L. Loewy, Lambda Legal Defense & Education Fund
Inc., Washington, D.C.; Omar Gonzalez-Pagan, Lambda
Legal Defense & Education Fund Inc., New York, New
York; Morgan Walker, Lambda Legal Defense & Education
Fund Inc., Dallas, Texas; A.D. Lewis, Lambda Legal
Defense & Education Fund Inc., Los Angeles, California; for
Amicus Curiae Lambda Legal Defense & Education Fund
Inc.

OPINION

BEA, Circuit Judge:

As part of an ongoing investigation into potential
violations of federal health care laws, the United States
Department of Justice (DOJ) issued an administrative
subpoena to QueerDoc pursuant to the Health Insurance
Portability and Accountability Act (HIPAA). QueerDoc is
an online medical clinic that treats patients, including
minors, who suffer from gender dysphoria. An interested
patient, after an introductory meeting and the completion of
some online forms, can have a “medical visit” that consists
of a videoconference with a licensed medical professional.
After this virtual appointment, a patient may be diagnosed
with gender dysphoria and prescribed puberty blockers and
cross-sex hormones.

8 QUEERDOC, PLLC V. USDOJ
QueerDoc commenced this action by filing a motion to
quash the subpoena in federal district court. The parties did
not dispute that DOJ had statutory authority to issue the
subpoena. However, the district court found the subpoena
unenforceable because DOJ had issued it for an “improper
purpose”: to achieve the President’s policy objective of
“eliminating gender-affirming care.” The district court thus
quashed the subpoena in its entirety.
We hold that QueerDoc has not met its heavy burden of
showing that the subpoena was issued for an improper
purpose. Consistent with the presumption of regularity and
the high standard required to quash an administrative
subpoena on improper purpose grounds, the Executive
Branch’s public opposition to “gender-affirming care” is
insufficient to show that an agency within the Executive
Branch issued an otherwise permissible HIPAA subpoena in
bad faith. The President may direct DOJ to exercise its
statutory authority in a manner that aligns with his broader
policy goals. Accordingly, we reverse the district court’s
order quashing the subpoena in its entirety and remand for
further proceedings.
I
A
The Health Insurance Portability and Accountability Act
of 1996 (HIPAA) authorizes the Attorney General
or his designee to issue a subpoena in “any investigation
of . . . a Federal health care offense.” 18 U.S.C.
§ 3486(a)(1)(A)(i)(I). “Federal health care offense,” defined
at 18 U.S.C. § 24(a), includes any prohibited acts under the
Federal Food, Drug, and Cosmetic Act (FDCA) and related
conspiracies. See 21 U.S.C. § 331.

QUEERDOC, PLLC V. USDOJ 9
The FDCA outlaws the introduction into interstate
commerce of “any new drug” unless the Food and Drug
Administration (FDA) has approved a new drug application
(NDA) for that drug. 21 U.S.C. §§ 331(d), 355(a). The
NDA must demonstrate that a drug is safe and effective for
a certain range of uses; the FDA approves the drug only for
those specified uses. Id. § 352(f); 21 C.F.R. § 201.5. The
FDA also approves the drug’s labeling, which specifies the
approved uses and provides directions for administering the
drug in accordance with those uses. 21 C.F.R. §§ 201.5,
201.55–201.57. Manufacturing, promoting, or labeling a
drug for non-FDA-approved uses, known as “off-label
uses,” may violate the FDCA’s prohibition on misbranding.
See 21 U.S.C. §§ 352(a), (f), 355(a).
QueerDoc operates in this highly regulated industry.
QueerDoc holds itself out as a “telehealth provider of gender
affirming care” that offers services to patients, including
minors, in ten states. A person who lives in one of these
states and believes that he may suffer from gender dysphoria
can go to QueerDoc’s public website and register for
a free fifteen-minute consultation regarding potential
treatment plans. See QueerDoc, Telemedicine Services,
https://perma.cc/EQW5-C7WT; QueerDoc, Youth Gender
Care, https://perma.cc/23UZ-7YWE. Assuming the
prospective patient wishes to proceed, he will upload various
medical records and consent forms to QueerDoc’s online
“patient portal” and will then have an hour-long medical
visit by videoconference with one of QueerDoc’s licensed
medical professionals. See QueerDoc, Telemedicine
Services. After the visit, the doctor may render a diagnosis
(here, of gender dysphoria), refer the patient to another clinic
for testing or further treatment, and prescribe drugs for the
patient. See QueerDoc, Telemedicine Services; QueerDoc,

10 QUEERDOC, PLLC V. USDOJ
Youth Gender Care; QueerDoc, Our Pricing,
https://perma.cc/FZ7E-MTT2.
The drugs that QueerDoc prescribes to its patients fall
within one of two categories: “puberty blockers” and “cross-
sex hormones.” The term “puberty blockers” refers to a set
of prescription drugs that block the natural production of sex
hormones, thereby suppressing the effects of normal
puberty in an adolescent’s body. Report, U.S. Dep’t of
Health and Human Services, Treatment for Pediatric
Gender Dysphoria: Review of Evidence and Best Practices
(“HHS Report”) at 116–17 (Nov. 19, 2025),
https://perma.cc/ZMA3-YPQ2. The term “cross-sex
hormones” refers to a set of prescription drugs intended to
alter a person’s secondary sexual characteristics so that they
resemble those of the opposite sex (e.g., estrogen for males;
testosterone for females). Id. at 123. Neither puberty
blockers nor cross-sex hormones have been approved by the
FDA for the purpose of treating gender dysphoria.
1
All use
of these drugs to treat gender dysphoria is “off-label.”

1
The FDA has approved puberty blockers for other uses, including the
treatment of central precocious puberty (CPP), a condition in which the
pituitary gland is activated prematurely, sometimes during infancy or
early childhood. See HHS Report, supra, at 115–16. CPP is associated
with many “negative health outcomes,” including decreased adult height.
Id. Thus, puberty blockers are approved to treat CPP in youths but not
to treat gender dysphoria. Moreover, because puberty blockers are
administered to CPP patients differently from the way they are
administered to patients with gender dysphoria, the side effects of the
latter treatment are unknown. See United States v. Skrmetti, 605 U.S.
495, 533 (2025) (Thomas, J., concurring) (“To treat precocious puberty,
puberty blockers are administered until the age appropriate for puberty;
to treat gender dysphoria, however, puberty blockers are administered to
stop puberty throughout the years it would normally occur.”).

QUEERDOC, PLLC V. USDOJ 11
Although QueerDoc prescribes puberty blockers and
cross-sex hormones, it does not manufacture or distribute
these drugs. In addition to providing medical services,
QueerDoc operates a public website that informs readers
about various matters pertaining to “gender-affirming care.”
For example, two of QueerDoc’s webpages provide written
and visual instructions for injecting cross-sex hormones into
one’s own body. QueerDoc, Tips for Less Painful Injections,
https://perma.cc/6TC5-T84R; QueerDoc, Self-Injections,
https://perma.cc/3UTA-QKEQ. Other webpages provide
links to pharmacies from which a person may obtain
puberty blockers and cross-sex hormones and advise
the reader on how to submit insurance claims for these drugs.
QueerDoc, Pharmacy Options, https://perma.cc/XLL9-
9286; QueerDoc, Insurance Dictionary,
https://perma.cc/PRC8-KVKT. On another webpage,
QueerDoc claims that the effects of puberty blockers are
“completely reversible.” QueerDoc, Youth Gender Care,
https://perma.cc/23UZ-7YWE.
It is generally understood that the FDCA does not
regulate core aspects of medical practice, such as a doctor’s
choice of which drug to prescribe to a patient. See, e.g., U.S.
Food and Drug Admin., Legal Status of Approved Labeling
for Prescription Drugs; Prescribing for Uses Unapproved
by the Food and Drug Administration, 37 Fed. Reg. 16,503,
16,504 (Aug. 15, 1972) (“Congress did not intend the [FDA]
to regulate or interfere with the practice of medicine.”).
State law and professional standards of practice regulate a
doctor’s ability to prescribe drugs for off-label uses. The
FDCA, in contrast, regulates the labeling and branding of
drugs and their distribution into the national market.
As relevant here, the FDCA prohibits the “misbranding”
of a drug. 21 U.S.C. §§ 331(a)–(b), 352. One way to

12 QUEERDOC, PLLC V. USDOJ
“misbrand” a drug is to publish false or misleading labeling
of that drug. Id. § 352(a). Under the FDCA, “labeling”
includes all “labels and other written, printed, or graphic
matter (1) upon any article or any of its containers or
wrappers, or (2) accompanying such article.” Id. § 321(m).
A piece of “labeling” may “accompany” a drug even if it is
physically separated from the drug’s container. See Kordel
v. United States, 335 U.S. 345, 350 (1948) (“No physical
attachment . . . is necessary.”). The FDA has given
“labeling” a broad definition that includes virtually any
“printed, audio, or visual matter descriptive of a drug.” 21
C.F.R. § 202.1(l)(2).
The off-label use of puberty blockers and cross-sex
hormones to treat minors with gender dysphoria is the
subject of “fierce scientific and policy debates,” United
States v. Skrmetti, 605 U.S. 495, 525 (2025), and reflects a
“deep conflict over human nature.” State v. Loe, 692 S.W.3d
215, 239 (Tex. 2024) (Blacklock, J., concurring). The
Trump Administration has taken one side of this dispute. On
January 20, 2025, President Trump signed Executive Order
14,168 (EO 14,168), which declared that the United States
“recognize[s] two sexes, male and female,” and “[t]hese
sexes are not changeable.” Exec. Order No. 14,168, 90 Fed.
Reg. 8615, § 2 (Jan. 20, 2025). On January 28, 2025,
President Trump signed Executive Order 14,187 (EO
14,187), which declared that the federal government would
not “fund, sponsor, promote, assist, or support the so-called
‘transition’ of a child from one sex to another.” Exec. Order
14,187, 90 Fed. Reg. 8771, § 1 (Jan. 28, 2025). Section 8(c)
of EO 14,187 directed DOJ to “prioritize investigations” into
“violations of the [FDCA] by any entity that may be
misleading the public about long-term side effects of
chemical and surgical mutilation.” Id. § 8(c). Section 11(b)

QUEERDOC, PLLC V. USDOJ 13
provided that EO 14,187 “shall be implemented consistent
with applicable law.” Id. § 11(b).
On April 22, 2025, then-Attorney General Pamela Bondi
circulated to all DOJ employees a memorandum (the “Bondi
Memo”) to implement § 8(c) of EO 14,187. To that end, the
Bondi Memo directed the Consumer Protection Branch, an
office within the Civil Division of DOJ, to conduct
“appropriate investigations of any violations of the [FDCA]
by manufacturers and distributors engaged in misbranding
by making false claims about the on- or off-label use of
puberty blockers, sex hormones, or any other drug used to
facilitate a child’s so-called ‘gender transition.’” The Bondi
Memo took the position that “the promotion of off-label uses
of hormones . . . run[s] afoul of the FDA’s prohibitions on
misbranding and mislabeling.” The Bondi Memo stated a
goal: to “bring [gender-affirming care] to an end.”
On June 11, 2025, Brett Shumate, Assistant Attorney
General for the Civil Division, circulated to all Civil
Division employees a memorandum (the “Shumate Memo”)
that further refined the directives in EO 14,168, EO 14,187,
and the Bondi Memo. Relevant here, the Shumate Memo
directed the Civil Division to “prioritize investigations of
doctors, hospitals, pharmaceutical companies, and other
appropriate entities” for “possible violations of the
[FDCA].”
B
1
On June 11, 2025, Assistant Attorney General Shumate
served QueerDoc with the present subpoena. The subpoena

14 QUEERDOC, PLLC V. USDOJ
ordered QueerDoc to produce, no later than July 9, 2025, the
following documents:
Request 1: Personnel files for
(i) QueerDoc executives;
(ii) QueerDoc employees or
contractors who are
authorized to prescribe
medications or perform
medical evaluations; and
(iii) QueerDoc employees
or contractors who are
engaged in billing activities.
Requests 2–6: Documents relating to
billing, coding, and
reimbursement practices in
the provision of “gender-
related care” to minors,
including billing records,
insurance claims, internal
protocols, and training
materials.
Requests 7–9: Communications between
QueerDoc and drug
manufacturers, salespeople,
and pharmacies relating to
the use of puberty blockers
and hormones in minors for
the purpose of “gender-
related care.”
Request 10: Records of sponsorships
or contracts between

QUEERDOC, PLLC V. USDOJ 15
QueerDoc and any
manufacturer of puberty
blockers or hormones or any
pharmacy that distributes
these drugs.
Requests 11–13: Patient records for any
patient who was prescribed
puberty blockers or
hormone therapy, including
medical records describing
the basis for the
prescription. For minor
patients who were
prescribed puberty blockers,
documents relating to
informed consent, patient
intake, and parental
authorization, including
disclosures about off-label
use of puberty blockers and
the associated risks.
Requests 14–15: Records of communications
between QueerDoc and
drug manufacturers,
pharmacies, or government
agencies relating to
the safety of puberty
blockers and hormones in
the treatment of minors.
Documents relating to
any adverse effects or
“unfavorable
consequence[s]” of

16 QUEERDOC, PLLC V. USDOJ
“gender-related care” in
minor patients.
The subpoena stated that production of the documents
was “necessary in the performance of the responsibility of
the [DOJ] to investigate Federal health care offenses as
defined in 18 U.S.C. § 24(a).”
On June 26, 2025, QueerDoc’s counsel and three DOJ
attorneys met by videoconference to discuss the subpoena.
QueerDoc’s counsel asked about the basis for DOJ’s
investigation of QueerDoc. One DOJ attorney referred to
the directives contained in EO 14,168, EO 14,187, and the
Bondi Memo, and explained that his office had been “tasked
with investigating potential violations of the [FDCA],” but
did not offer specific reasons for investigating QueerDoc
other than its prominence as a provider of “gender-affirming
care.” DOJ stated that although it would require QueerDoc
to begin production by July 9, it did not expect that
production would be completed by that date.
2
On July 8, 2025, QueerDoc filed a motion to quash the
subpoena in the United States District Court for the Western
District of Washington pursuant to 18 U.S.C. § 3486(a)(5).
See Motion to Quash Subpoena, No. 2:25-mc-00042-JNW
(W.D. Wash., July 8, 2025), ECF Doc. 1. QueerDoc did not
claim that DOJ lacked statutory authority to issue this
subpoena. See id. at 9. QueerDoc instead argued that the
subpoena was unenforceable, irrespective of statutory
authority, because DOJ had issued it for an “improper
purpose.” Id. at 6–9. Alternatively, QueerDoc argued that
the subpoena was invalid because its document requests

QUEERDOC, PLLC V. USDOJ 17
were “overbroad” and compliance with them would be
“unduly burdensome.” Id. at 9–12.
QueerDoc asserted that the “improper purpose” for this
subpoena originated “[a]t the highest levels of government.”
Id. at 8. QueerDoc argued that the “true purpose” of § 8(c)
of EO 14,187 was to “downsize or eliminate all gender-
affirming care.” Id. at 7 (emphasis in original) (internal
quotation marks omitted). QueerDoc contended that
because DOJ issued the subpoena to implement § 8(c) of EO
14,187, it had issued the subpoena to achieve the same goal
as the Administration: to “end” the provision of gender-
affirming care. Id. at 4, 8. Because “[e]nding gender
affirming care” was not a “valid” purpose of a HIPAA
subpoena, QueerDoc argued, this subpoena should be
quashed. Id. at 6–9. QueerDoc did not contend that any of
DOJ’s investigators harbored illicit motives. Rather,
QueerDoc asserted that the Administration’s directives and
public statements themselves were sufficient proof of
improper purpose. Id. at 8–9 (“The Court can—and
should—find improper purpose and bad faith from [the
Administration’s] statements alone.”).
DOJ filed a response arguing that the Administration’s
“position as to gender-related medical treatments for
minors” was not a valid reason to quash the subpoena. DOJ
emphasized that a court’s duty in a subpoena-enforcement
proceeding is to ensure that the investigating agency has
acted pursuant to statutory authority. Because it was
undisputed that HIPAA authorized DOJ to issue the
subpoena, DOJ argued that the district court should enforce
it. See 18 U.S.C. § 3486(c).
Two months after filing its response, and one month
before the district court issued its order quashing the

18 QUEERDOC, PLLC V. USDOJ
subpoena, DOJ tried to supplement the record with a
declaration from Allan Gordus, the Assistant Director of the
Consumer Protection Branch (the “Gordus Declaration”).
The Gordus Declaration explained DOJ’s reasons for
believing that QueerDoc may be engaged in the
“misbranding” of puberty blockers and cross-sex hormones
through false or misleading labeling. DOJ attempted to file
the Gordus Declaration pursuant to a local rule that permits
a party to “add an additional document in support of a
previous filing.” W.D. Wash. Loc. Civ. R. 7(m).
3
On October 27, 2025, the district court quashed the
subpoena in its entirety on the ground that DOJ had issued it
for an “improper purpose.” QueerDoc, PLLC v. U.S. Dep’t
of Just., 807 F. Supp. 3d 1295, 1301–04 (W.D. Wash. 2025).
The district court first analyzed the Administration’s general
policy on “gender-affirming care.” See id. at 1302–03.
Based on EO 14,168, EO 14,187, the Bondi Memo, the
Shumate Memo, and public statements from the
Administration, the district court found that “the
Administration’s explicit agenda” was to “downsize or
eliminate all gender-affirming care.” Id. at 1303 (internal
quotation marks omitted). The district court concluded that
this “agenda” was improper because its objective—“the
elimination of medical care that Washington and other states
explicitly protect”—was one that “the Administration
cannot accomplish . . . .” Id. at 1301. The district court then
imputed that improper purpose to DOJ’s investigation of
QueerDoc: Because DOJ “implemented [the
Administration’s] directives through [the issuance of]
administrative subpoenas,” the district court concluded that
DOJ issued the subpoena to QueerDoc for an “improper
purpose.” I d. at 1302–04.

QUEERDOC, PLLC V. USDOJ 19
The district court also noted that the “mismatch”
between QueerDoc’s business activities and the stated
purpose of the investigation demonstrated the subpoena’s
“pretextual nature.” Id. at 1303. While acknowledging that
“the government need not justify its decision to open an
investigation” in the typical case, the district court subjected
DOJ’s reasoning to a “more muscular review.” Id. at 1302.
Turning to the sufficiency of DOJ’s explanation, the district
court found that DOJ’s “inability to articulate why it is
investigating QueerDoc” “confirm[ed]” that the subpoena
was issued for the improper purpose of ending “gender-
affirming care.” Id. at 1303.
Because the district court quashed the subpoena in its
entirety on improper purpose grounds, it did not reach
QueerDoc’s arguments regarding overbreadth and undue
burden. Id. at 1304. The district court also suggested that
DOJ had issued the subpoena under its valid HIPAA
authority, although QueerDoc had not raised the issue of
statutory authority in its motion to quash. See QueerDoc,
807 F. Supp. 3d at 1301 n.1. Finally, the district court struck
the Gordus Declaration on the ground that it did not comply
with Local Civil Rule 7(m). See id. at 1303 n.2. The district
court noted that it would have quashed the subpoena even if
it had considered the Gordus Declaration, which, in the
court’s view, “further demonstrate[d] the pretextual nature
of the subpoena.” Id.
This appeal followed.
II
We have jurisdiction pursuant to 28 U.S.C. § 1291. In
re Subpoena Duces Tecum, 228 F.3d 341, 346–47 (4th Cir.
2000) (orders enforcing or quashing administrative
subpoenas are “final” because “there is no ongoing judicial

20 QUEERDOC, PLLC V. USDOJ
proceeding that would be delayed by an appeal.” ); see
Cobbledick v. United States, 309 U.S. 323, 330 (1940)
(proceedings to enforce administrative subpoenas are “self-
contained, so far as the judiciary is concerned[.]”).
We review the district court’s order quashing an
administrative subpoena for abuse of discretion. McLane
Co. v. EEOC, 581 U.S. 72, 75 (2017). We will uphold the
district court’s findings of fact unless they are “illogical,
implausible, or without support in inferences that may be
drawn from the record.” United States v. Hinkson, 585 F.3d
1247, 1263 (9th Cir. 2009) (en banc). However, “the District
Court’s latitude does not extend to legal issues about what
counts as an illicit motive,” United States v. Clarke, 573 U.S.
248, 256 (2014), and we review such legal issues de novo.
Hinkson, 585 F.3d at 1261–62.
III
We begin by describing a federal court’s authority to
enforce or quash an administrative subpoena before
explaining why the district court exceeded its authority in
this case.
A
An administrative agency’s authority to issue subpoenas
is created by statute. Peters v. United States, 853 F.2d 692,
696 (9th Cir. 1988). Just as Congress delegated to agencies
the power to execute federal law in particular domains,
Congress delegated to certain agencies the “power[] of
original inquiry” to fulfill their statutory mandates. United
States v. Morton Salt Co., 338 U.S. 632, 642 (1950). As part
of this scheme, Congress made federal courts the exclusive
bodies that could enforce, modify, or quash administrative
subpoenas. In re Nat’l Sec. Letter, 33 F.4th 1058, 1063 (9th

QUEERDOC, PLLC V. USDOJ 21
Cir. 2022) (“[W]hile an agency may issue a subpoena
without prior judicial approval, it must invoke the aid of a
federal court to enforce it.”). The scope of a court’s inquiry
during a subpoena-enforcement proceeding, however, is
“strictly limited.” FTC v. Texaco, Inc., 555 F.2d 862, 871–
72 (D.C. Cir. 1977) (en banc). If enforcing a subpoena
entailed rigorous, trial-like proceedings, “the investigative
process [w]ould be completely disrupted,” agencies would
be “diverted from their legitimate duties,” and the “injection
of collateral issues . . . would make the investigation
interminable.” Hannah v. Larche, 363 U.S. 420, 443 (1960).
Hence, these proceedings are “summary in nature.” United
States v. Stuart, 489 U.S. 353, 369 (1989).
The court’s primary role is to ensure that the agency does
not act “arbitrarily or in excess of [its] statutory authority.”
Okla. Press Publ’g Co. v. Walling, 327 U.S. 186, 216 (1946).
The agency bears the initial burden of showing that
(1) Congress empowered the agency to issue investigatory
subpoenas; (2) the agency followed applicable procedures;
and (3) the subpoena sought evidence that could be relevant
and material to a statutorily authorized investigation. United
States v. Golden Valley Elec. Ass’n, 689 F.3d 1108, 1113
(9th Cir. 2012). An affidavit in which the investigating
official declares a legitimate basis for the subpoena is
sufficient to establish the agency’s prima facie case for
enforcement. FDIC v. Garner, 126 F.3d 1138, 1143 (9th
Cir. 1997). Once the agency has established its prima facie
case, the recipient is left with “few defenses” against
enforcement. United States v. Derr, 968 F.2d 943, 945 (9th
Cir. 1992).
One defense is that enforcement of the subpoena would
be an “abusive use of the court’s process” because, although
the subpoena was authorized by statute, the agency issued it

22 QUEERDOC, PLLC V. USDOJ
for an “improper purpose” or in bad faith. United States v.
Powell, 379 U.S. 48, 51, 58 (1964). An “abuse of process”
would occur if a court enforced an administrative subpoena
that the agency had “issued for an improper purpose, such as
to harass [the recipient] or to put pressure on him to settle a
collateral dispute, or for any other purpose reflecting on the
good faith of the particular investigation.” Id. at 58. A party
that seeks to quash a subpoena on this basis bears a “heavy”
burden to produce “specific facts and evidence to support his
allegations of bad faith or improper purpose.” United States
v. Jose, 131 F.3d 1325, 1328 (9th Cir. 1997) (en banc)
(citation and internal quotation marks omitted).
A federal court has the inherent power to ensure that its
process is not abused by a government that acts from illicit
motives. See Powell, 379 U.S. at 58 (“It is the court’s
process which is invoked to enforce the [subpoena], and a
court may not permit its process to be abused.”). The
authority to quash an administrative subpoena when its
enforcement would abuse the court’s process derives from
this inherent power. SEC v. ESM Gov’t Sec., Inc., 645 F.2d
310, 317 (5th Cir. Unit A 1981) (“The equitable powers of
the courts of the United States . . . over their own process, to
prevent abuse, oppression and injustice, are inherent. . . .
The Supreme Court’s directive[] in Powell . . . leave[s] no
doubt that this power may be properly invoked in cases
involving the enforcement of administrative subpoenas.”);
see also Chapman v. Maren Elwood Coll., 225 F.2d 230, 234
(9th Cir. 1955) (explaining that a subpoena-enforcement
proceeding is “equitable in character”). The prohibition
against bad-faith subpoenas is also grounded in the Fourth
Amendment’s requirement that a subpoena be reasonable.
Golden Valley, 689 F.3d at 1113. Whether the authority

QUEERDOC, PLLC V. USDOJ 23
rests on our inherent equitable power or on the Fourth
Amendment, the inquiry remains the same.
The doctrine of “improper purpose” arose from the use
of civil tax summonses by the Internal Revenue Service
(IRS). In the term before it decided United States v. Powell,
the Supreme Court noted that the recipient of an IRS civil
tax summons could raise the defense that the IRS had issued
the summons “for the improper purpose of obtaining
evidence for use in a criminal prosecution.” Reisman v.
Caplin, 375 U.S. 440, 449 (1964). This defense came from
the text of the Internal Revenue Code, which enumerated
four valid purposes of a civil tax summons. See id. at 442
n.1. Moreover, there was a separate concern that if the IRS
used its civil summons authority to obtain information to be
used later in a criminal investigation, it would circumvent
rules of criminal procedure intended to protect the rights of
defendants. See United States v. LaSalle Nat’l Bank, 437
U.S. 298, 312 (1978). Therefore, the Supreme Court held
that the IRS could not issue a civil summons if there was a
“pending criminal charge” or if the IRS was conducting “an
investigation solely for criminal purposes.” Donaldson v.
United States, 400 U.S. 517, 533 (1971). The Supreme
Court later added that the IRS could not use its civil
summons authority in “bad faith,” which would occur if the
IRS issued a summons to investigate potential tax violations
after the IRS had referred those violations to DOJ for
criminal prosecution. LaSalle, 437 U.S. at 311–13, 316.
Although the leading cases on “improper purpose” and
“bad faith” involve the use of IRS civil tax summonses in
connection with criminal investigations, the doctrine also
applies to extreme cases of official misconduct. For
example, it is improper to issue a subpoena solely for the
benefit of a private party, rather than for a public-regarding

24 QUEERDOC, PLLC V. USDOJ
purpose. See United States v. Cortese, 614 F.2d 914, 921
(3d Cir. 1980) (if a private informant was “pursuing its own
business purpose by giving the IRS data,” and the “entire
motivation” for the IRS investigation was this private party’s
information, an improper purpose may exist). An agency
investigator may not issue a subpoena to satisfy a “personal
vendetta.” EEOC v. First Ala. Bank of Birmingham, 440 F.
Supp. 1381, 1385 (N.D. Ala. 1977), aff’d, 611 F.2d 132 (5th
Cir. 1980). Nor may a member of Congress direct an agency
to pursue a “patently frivolous” investigation. See SEC v.
Wheeling-Pittsburgh Steel Corp., 648 F.2d 118, 127–30 (3d
Cir. 1981) (en banc); but see United States v. Am. Target
Advert., Inc., 257 F.3d 348, 355 (4th Cir. 2001) (“[Recipient]
has demonstrated a fair degree of hostility directed toward it
by Senator Pryor. But that is not enough.”). Finally, a court
may not enforce a subpoena based on evidence that the
agency obtained through “fraud, deceit, or trickery,” for
when an agency “invokes the power of a court to gather the
fruits of its deception . . . there is an abuse of process.”
ESM, 645 F.2d at 316–17.
There is no exhaustive list of “improper purposes.”
LaSalle, 437 U.S. at 318 n.20 (“Future cases may well reveal
the need to prevent other forms of agency abuse
of . . . judicial process.” ). As a corollary to a court’s inherent
authority to police the integrity of its processes, a court may
recognize and proscribe novel “improper purposes” in the
first instance. See Wheeling-Pittsburgh, 648 F.2d at 124
(“[Just] because the Supreme Court has never confronted
allegations like the ones before us does not mean that the
federal judiciary is powerless to structure relief . . . .”). But
a court’s exercise of this inherent authority must accord with
the thick set of legal principles that limit judicial review of
administrative subpoenas. Cf. Armstrong v. Exceptional

QUEERDOC, PLLC V. USDOJ 25
Child Care Ctr., Inc., 575 U.S. 320, 327–28 (2015) (“‘Courts
of equity can no more disregard statutory and constitutional
requirements and provisions than can courts of law.’”)
(quoting Hedges v. Dixon Cnty., 150 U.S. 182, 192 (1893)).
Our court has long respected those principles of judicial
restraint. Applying them to the present case, we hold that
the district court erred in finding that DOJ had issued the
subpoena for an improper purpose.
B
We first turn to the requirement that DOJ issue an
administrative subpoena pursuant to statutory authority. We
conclude that DOJ did so here.
1
To establish its statutory authority, DOJ had to
demonstrate the following: (1) Congress granted DOJ the
authority to issue investigatory subpoenas; (2) DOJ followed
the relevant procedural requirements; and (3) the evidence
sought by the subpoena was relevant and material to a
statutorily authorized investigation. Golden Valley, 689
F.3d at 1113. It satisfied each requirement.
First, Congress authorized DOJ to issue investigative
subpoenas under HIPAA. 18 U.S.C. § 3486(a)(1)(A)–(B)
(“In any investigation of . . . a Federal health care
offense . . . the Attorney General . . . may issue in writing
and cause to be served a subpoena requiring the
production . . . of any records or other things relevant to the
investigation . . . .”); see also id. § 24(a). Because HIPAA
permits investigations for potential violations of the FDCA’s
misbranding prohibitions, DOJ properly issued its subpoena
under HIPAA. See 21 U.S.C. §§ 331(a)–(c), 352(a), (f).

26 QUEERDOC, PLLC V. USDOJ
Second, DOJ complied with HIPAA’s procedural
requirements. See 18 U.S.C. §§ 3486(a)–(b). The
subpoena’s fifteen document requests and definitions
adequately “describe[d] the objects” that QueerDoc was
required to produce. Id. § 3486(a)(2). The subpoena
“prescribe[d] a return date,” required production at a
location within 500 miles of where QueerDoc was served
with the subpoena, was signed by the Attorney General’s
designee, and was served on QueerDoc’s registered agent.
Id. § 3486(a)–(b).
Third, the subpoena requests were relevant to an
authorized investigation under HIPAA. 18 U.S.C.
§ 3486(a)(1)(B)(i). The question of an administrative
subpoena’s relevance is not one of evidentiary relevance.
Doe v. United States, 253 F.3d 256, 266 (6th Cir. 2001)
(analyzing a HIPAA subpoena). Instead, “[r]elevancy is
determined in terms of the investigation,” Golden Valley,
689 F.3d at 1113, and an agency “may define the boundary
of its investigation quite generally,” CFPB v. Accrediting
Council for Indep. Colls. & Schs. (ACICS), 854 F.3d 683,
690 (D.C. Cir. 2017) (citation and internal quotation marks
omitted). A HIPAA subpoena must be enforced unless the
“evidence sought by the subpoena is plainly incompetent or
irrelevant to any lawful purpose of the agency.” EEOC v.
Karuk Tribe Hous. Auth., 260 F.3d 1071, 1076 (9th Cir.
2001) (citation, alterations, and internal quotation marks
omitted).
DOJ’s subpoena to QueerDoc clears this low bar. As
DOJ explained in its briefing and in the Gordus Declaration,
QueerDoc may itself be misbranding drugs in violation of

QUEERDOC, PLLC V. USDOJ 27
the FDCA.
2
Further, QueerDoc may possess information
relevant to DOJ’s broader investigation of manufacturers
and distributors. See Opening Brief for Appellant 32–38;
Reply Brief for Appellant 6–8; ER 62–73.
As the Gordus Declaration explains, DOJ has questions
about whether QueerDoc is engaged in the misbranding of
puberty blockers and cross-sex hormones. See ER 62–73.

2
In the district court, after briefing on QueerDoc’s motion to quash was
complete, QueerDoc filed a notice of supplemental authority concerning
a recent district court decision that quashed an administrative subpoena.
QueerDoc’s filing indicated, among other things, that quashal had been
proper in that separate case because the government had not filed any
affidavits to show its proper purpose for issuing the subpoena, which
sought information about a hospital’s provision of gender-affirming care.
In response to QueerDoc’s filing, DOJ sought leave to file the Gordus
Declaration. DOJ explained that “[b]ecause QueerDoc supplemented its
original filing with additional authority to suggest the government issued
the administrative subpoena for an improper purpose and may need ‘an
affidavit[] or other evidence to show proper purpose,’ the United States
asks this Court to permit the filing” of the Gordus Declaration. The
Gordus Declaration did no more than expand upon DOJ’s previously
stated positions in response to QueerDoc’s assertion that DOJ had to
provide further information to justify the subpoena. The district court
struck the Gordus Declaration. QueerDoc, 807 F. Supp. 3d at 1303 n.2.
But it did so after imposing a “more muscular review” of DOJ’s asserted
purpose, id. at 1302, a standard that cannot be reconciled with our case
law, which establishes that judicial review of an administrative subpoena
is “quite narrow.” Golden Valley, 689 F.3d at 1113 (citation omitted).
Having imposed an improperly high standard, the district court should
have permitted DOJ to meet that standard. Moreover, the district court
itself considered the effect of the Gordus Declaration on the merits of the
case, finding that the declaration “further demonstrate[d] the pretextual
nature of the subpoena.” QueerDoc, 807 F. Supp. 3d at 1303 n.2. Even
if the district court did not err in striking the Gordus Declaration, we
exercise our discretion to consider it. QueerDoc has long had notice of
the declaration and an opportunity to respond to it, and the declaration
merely expands on DOJ’s previously stated positions.

28 QUEERDOC, PLLC V. USDOJ
QueerDoc’s webpages promote the off-label use of these
drugs, instruct users how to administer them, tell users where
to obtain them, and claim that any effects are “completely
reversible.” QueerDoc, Self-Injections; QueerDoc,
Pharmacy Options; QueerDoc, Youth Gender Care.
According to DOJ, these statements may qualify as
“labeling” of puberty blockers and cross-sex hormones
under the FDA’s broad definition of that term. See 21 C.F.R.
§ 202.1(l)(2). DOJ further maintains that promotion of a
drug for off-label uses may violate the FDCA if that
promotion constitutes “false or misleading” “labeling” of
that drug. 21 U.S.C. §§ 331(a), 352(a). Finally, QueerDoc’s
website suggests that it may be engaged in fraudulent billing
practices. See QueerDoc, Pharmacy Options (“We usually
order prescriptions under the diagnosis of ‘endocrine
disorder’ not ‘gender dysphoria[.]’”).
3

Under this theory of the investigation, the personnel files
and training materials sought in Request 1 are relevant
because they may help DOJ identify the individuals
responsible for any unlawful billing, prescribing, or labeling
practices. Requests 2 through 6, which seek records of
billing, coding, and reimbursement practices, are relevant to
determining whether QueerDoc disguised treatment for
gender dysphoria as treatment for another illness, which
could demonstrate an “intent to defraud or mislead” under
21 U.S.C. § 333(a)(2). Requests 14 and 15, which seek
communications with drug manufacturers and distributors
about possible adverse effects of these drugs, are relevant to

3
Endocrine disorders are conditions caused by imbalances in hormone
levels or by the body’s inability properly to utilize hormones. Common
types include diabetes, thyroid diseases, and pituitary or adrenal
disorders. Such disorders appear to be quite different from “gender
dysphoria.”

QUEERDOC, PLLC V. USDOJ 29
establishing conspiracy as well as intent and knowledge
regarding the potential falsity of QueerDoc’s statements.
Further, the subpoena requests may be relevant because they
could help DOJ determine whether QueerDoc’s conduct
falls within DOJ’s regulatory jurisdiction. Fed. Mar.
Comm’n v. Port of Seattle, 521 F.2d 431, 434 (9th Cir. 1975)
(“[An] agency has the power to obtain the facts requisite to
determining whether it has jurisdiction over the matter
sought to be investigated.”).
Other requests are relevant not because they concern
QueerDoc’s own potential FDCA violations, but because
they seek information that QueerDoc may possess about
other actors in DOJ’s broader FDCA investigation, such as
manufacturers and distributors of puberty blockers and
cross-sex hormones. Drug manufacturers and distributors
may violate the FDCA by shipping drugs into interstate
commerce with the intent that they be used for an off-label
purpose. See 21 U.S.C. §§ 352(a), (f)(1), 355(a).
Communications between manufacturers and QueerDoc
might produce evidence of a manufacturer’s “knowledge”
that puberty blockers are “offered or used” for an off-label
purpose. 21 C.F.R. § 201.128. Promotional materials or
communications with sales representatives may also be
valuable evidence. See, e.g., Press Release, U.S . Dep’t of
Justice, Genzyme Corporation to Pay $32.5 Million to
Resolve Criminal Liability Relating to Seprafilm (Sep. 3,
2015), https://perma.cc/2V3Y-9SDG (conduct of “sales
representatives” and distribution of “promotional material”
relevant to misbranding charges under the FDCA). Requests
7 through 10, which seek records of communications with
manufacturers and sales representatives regarding the use of
puberty blockers or hormones, are thus relevant to an
authorized HIPAA investigation. Requests 11 through 13,

30 QUEERDOC, PLLC V. USDOJ
which seek patient records, may produce evidence about the
scale of any misconduct and about whether QueerDoc or
another party concealed the risks or failed to warn about the
potential adverse effects of “gender-affirming care.”
Applying a greater degree of scrutiny to the relevance of
each subpoena request would undermine Congress’s
decision to empower DOJ to investigate potential violations
of federal health care laws. See 18 U.S.C. § 3486(a)(1).
DOJ cannot know what information it may need to prove an
eventual violation or which entities it may wish to prosecute.
That is why it has the power to investigate. Hence, “[t]he
initial determination of what information is reasonably
relevant is left to the investigating agency.” In re Gimbel,
77 F.3d 593, 601 (2d Cir. 1996). We defer to the agency’s
assessment of relevance and intervene only in the extreme
case in which a subpoena seeks information that is “plainly
incompetent or irrelevant to any lawful purpose” of the
agency. Port of Seattle, 521 F.2d at 434 (quoting Endicott
Johnson Corp. v. Perkins, 317 U.S. 501, 509 (1943)). To
require any higher quantum of proof would be illogical. It
would tell an agency that it must prove what, at this stage,
the agency can do no more than suspect.
DOJ met its slight burden of demonstrating relevance, as
the district court suggested. QueerDoc, 807 F. Supp. 3d at
1301 n.1 (concluding that the subpoena “calls for the
production of documents relevant to an investigation” under
HIPAA). We therefore hold that DOJ issued the subpoena
pursuant to statutory authority.
2
The counterarguments raised by QueerDoc and the
dissent are unavailing. The gravamen of these arguments is
that DOJ’s investigation exceeds the substantive reach of the

QUEERDOC, PLLC V. USDOJ 31
FDCA. See Brief for Appellee 43–52; Dissent 62–64, 75–
77. Such arguments are premature at this stage in the
proceedings, so they do not support quashing the subpoena.
a
“[C]ourts must enforce administrative subpoenas unless
‘the evidence sought by the subpoena is plainly incompetent
or irrelevant to any lawful purpose of the agency.’” Karuk
Tribe, 260 F.3d at 1076 (brackets and internal quotation
marks omitted) (quoting Port of Seattle, 521 F.2d at 433–
34). “Although a party may not avoid an administrative
subpoena on the ground that it has a valid defense to a
potential subsequent lawsuit, such a challenge may, in
limited circumstances, be mounted when the defense raised
is ‘jurisdictional’ in nature—i.e., when the agency lacks
jurisdiction over the subject of the investigation.” Id. at
1076–77. However, at the subpoena-enforcement stage, any
“factual challenges based on a lack of statutory ‘coverage’
are clearly not permitted.” Id. at 1077 (citation omitted).
QueerDoc argues that DOJ’s investigation is infirm for
several reasons: (1) the statements on its website do not
constitute “labeling” under the FDCA; (2) the FDCA does
not regulate the act of prescribing drugs for off-label uses;
(3) applying the FDCA’s “misbranding” prohibition to
QueerDoc’s statements on its website would violate its First
Amendment right to freedom of speech; and (4) interpreting
the FDCA to reach the prescribing of drugs for an off-label
use would violate principles of federalism. These arguments
all raise potential defenses to liability under the FDCA and
are therefore unripe for decision at this early point in the
investigation, when DOJ has not initiated any enforcement
action against QueerDoc. Karuk Tribe, 260 F.3d at 1076;
see also EEOC v. Shell Oil Co., 466 U.S. 54, 72 n.26 (1984)

32 QUEERDOC, PLLC V. USDOJ
(“[A]ny effort by the court to assess the likelihood that the
[commission] would be able to prove the claims made in the
charge would be reversible error.”).
The contrary approach urged by QueerDoc and our
dissenting colleague would require us to decide thorny
questions of statutory and constitutional law at this
preliminary stage in the proceedings. For instance, if an
online medical clinic prescribes a drug to its patients and
publishes articles on its website that instruct the public about
using that drug, do those articles constitute “labeling” of the
drug under the FDCA? See Brief for Appellee 43–45;
Dissent 76–77. Such “novel and complex” questions are
“especially ill-suited to a premature and absolute
pronouncement” at the subpoena-enforcement stage. EEOC
v. Mar. Autowash, Inc., 820 F.3d 662, 667 (4th Cir. 2016)
(Wilkinson, J.). Although these defenses may prevail if
QueerDoc raises them in a later enforcement action, it is
uncertain whether DOJ will ever bring such an action. A
claim that depends on “contingent future events that may not
occur as anticipated, or indeed may not occur at all” is “not
ripe for adjudication.” Texas v. United States, 523 U.S. 296,
300 (1998) (citations omitted).
b
We also reject the argument that the subpoena amounts
to an unauthorized “fishing expedition.” Brief for Appellee
52–55; see Dissent 63–64. Relying on our decision in Peters
v. United States, QueerDoc contends that DOJ may not use
a HIPAA subpoena to obtain information about third parties.
853 F.2d 692 (9th Cir. 1988). Thus, according to QueerDoc,
the subpoena requests that seek information about drug
manufacturers and distributors are statutorily invalid
because they do not relate to an investigation of QueerDoc

QUEERDOC, PLLC V. USDOJ 33
itself. But QueerDoc overreads Peters. That decision did
not establish a general prohibition against administrative
subpoenas that sought information about persons other than
the subpoena’s recipient. Indeed, such a rule would
contradict the recognized principle that an agency need not
“charge first and investigate later.” Reich v. Mont. Sulphur
& Chem. Co., 32 F.3d 440, 444 (9th Cir. 1994). Since
Peters, we have upheld subpoenas that sought information
about unidentified targets. See, e.g., Golden Valley, 689
F.3d at 1115.
Rather, Peters involved a subpoena that was
unenforceable because it furthered a “general investigation
of unnamed individuals” and was therefore too indefinite.
See 853 F.2d at 699–700. The subpoena in Peters did not
specify which laws the agency suspected were being violated
and did not name the parties under investigation. See id. at
694–96. Indefinite subpoenas, like the one in Peters, remain
subject to quashal. But we are not faced with an “indefinite”
subpoena here. DOJ’s subpoena sought specific records
(communications, billing, coding, and reimbursement
practices) for specific patients (minors) for specific drugs
(puberty blockers and cross-sex hormones) from a specific
entity (QueerDoc) for an investigation of a specific set of
FDCA violations (misbranding). Moreover, unlike the
subpoena recipient in Peters, QueerDoc operates its business
in the highly integrated pharmaceutical industry. DOJ must
have some flexibility in subpoenaing downstream actors in
such a complex supply chain to effectuate its investigation.
See Texaco, 555 F.2d at 877 (“[A] wide range of
investigation is necessary and appropriate where, as here,
multifaceted activities are involved, and the precise
character of possible violations cannot be known in
advance.”).

34 QUEERDOC, PLLC V. USDOJ
C
Because DOJ established its prima facie case for
enforcement of the subpoena, QueerDoc bore a “heavy”
burden to produce “specific facts and evidence to support
[its] allegations of bad faith or improper purpose.” Jose, 131
F.3d at 1328 (citation and internal quotation marks omitted).
The district court found that QueerDoc had discharged its
heavy burden. That was an error.
It is undisputed that the Administration opposes the
provision of “gender-affirming care” to minors. See
Opening Brief for Appellant 3 (“The President has serious
moral and policy objections to the practice of subjecting
minors to these interventions[.]”). Those views are not
“improper.” As QueerDoc’s counsel conceded at oral
argument, the President may have moral and political
objections to gender-affirming care, wish to end it, and take
steps to achieve that goal consistent with law. See Oral
Argument at 18:18–18:52, QueerDoc, PLLC v. U.S. Dep’t of
Just. (No. 25-7384), https://perma.cc/4NRE-Z3CT.
4

4
The full exchange from oral argument is below:
COUNSEL: These subpoenas were issued as part
of the Administration’s larger effort to
end gender-affirming care.
JUDGE BEA: Is that an improper motive for the
Executive? To end gender-affirming
care?
COUNSEL: Your Honor, the Executive issued an
Executive Order stating that they
wanted to “end” gender-affirming
care, calling it a “stain on the nation’s
history.” That, in and of itself, is not
improper—

QUEERDOC, PLLC V. USDOJ 35
The district court nonetheless inferred an improper
purpose for DOJ’s investigation because of the
Administration’s policy views and enforcement priorities.
QueerDoc presented no evidence of any other improper
purpose to the district court, such as a desire to benefit one
of QueerDoc’s market competitors or to settle some
collateral dispute. See Motion to Quash, supra, at 8. On
appeal, QueerDoc maintains that “the government’s
statements . . . alone” demonstrate improper purpose. Brief
for Appellee 32. But there is nothing improper about a
President having policy preferences and directing the
Executive Branch to enforce federal law in a manner
consistent with those preferences. Because QueerDoc
provided no additional evidence of improper purpose and the
district court overread the government’s public statements in
finding an improper purpose, we reverse.
1
First, the Administration’s policy views and objectives
were not themselves “improper.”
The use of puberty blockers and cross-sex hormones on
minors is the subject of “fierce scientific and policy
debates.” Skrmetti, 605 U.S. at 525. Many states have
codified protections for “gender-affirming care.” See Brief
for State of Washington et al. as Amici Curiae 6–7 & n.8.
These protections reflect the view of many leading medical
associations that “hormones and puberty blockers are
‘appropriate and medically necessary’ to treat gender
dysphoria.” Skrmetti, 605 U.S. at 582 (Sotomayor, J.,

JUDGE BEA: —not an improper motive, right?
COUNSEL: Certainly. The Administration can
have that as a policy goal and can take
steps to achieve that policy goal.

36 QUEERDOC, PLLC V. USDOJ
dissenting). In contrast, more than 20 states have banned or
limited the provision of sex-transition treatments to minors.
Id. at 504–05 (majority). Similarly, health authorities in
many developed nations have limited the use of these
treatments for minors, citing a lack of evidence supporting
their efficacy. See id.; see also Pamela Paul, As Kids, They
Thought They Were Trans. They No Longer Do., N.Y. TIMES
(Feb. 2, 2024), https://perma.cc/VG68-Q79G (“[In] Sweden,
Norway, France, the Netherlands and Britain . . . medical
professionals have recognized that early research on medical
interventions for childhood gender dysphoria was either
faulty or incomplete.”). The efficacy and long-term risks of
these treatments are uncertain.
5
The off-label use of puberty
blockers to treat gender dysphoria may adversely affect a
minor patient’s bone density, brain development, and
fertility; the off-label use of cross-sex hormones may harm a

5
In March 2026, Finnish researchers published a study based on data
from 2,100 Finns who sought care from a gender clinic between 1996
and 2019 before they reached age 23. See S.-M. Ruuska, K. Tuisku, T.
Holttinen, and R. Kaltiala, Psychiatric Morbidity Among Adolescents
and Young Adults Who Contacted Specialised Gender Identity Services
in Finland in 1996–2019, 115 Acta Paediatrica 1545, 1545–53 (2026).
The study found that among these youths—who showed sufficient signs
of gender dysphoria to seek care from a gender clinic—those who
underwent a medical gender transition were much more likely to seek
specialist psychiatric care later. See id. at 1545 (“Among adolescents
who underwent medical gender-reassignment, psychiatric morbidity
increased markedly.”). Among males in that group, 10 percent had
sought specialist psychiatric care before treatment, whereas 61 percent
did so after treatment. Id. Among females, the proportion rose from 22
percent to 55 percent. Id. As this study demonstrates, there is some
disagreement among professionals as to whether gender-affirming care
necessarily “improves mental health outcomes and reduces suicide risk
in transgender youth.” Brief for American Academy of Pediatrics as
Amicus Curiae 8–11.

QUEERDOC, PLLC V. USDOJ 37
patient’s sexual organs and increase his risk of cancer. See
Skrmetti, 605 U.S. at 534–35 (Thomas, J., concurring).
The district court found that the Administration sought
to “eliminate all gender-affirming care.” QueerDoc, 807 F.
Supp. 3d at 1303 (internal quotation marks and citation
omitted). Although the subpoena here was validly based on
an investigation of health care law violations, the goal of
ending “gender-affirming care” is not in and of itself an
“improper” policy objective. It is not so irrational or
arbitrary as to be ultra vires. The Administration is entitled
to adopt a position on either side of this “ongoing debate
among medical experts,” Skrmetti, 605 U.S. at 523, and to
pursue policies consistent with that position. A district court
has no warrant to override the President’s judgment on a
disputed matter of public policy. It is for the American
people, through the democratic process, to decide whether a
President’s views on such topics and the policies that result
from those views are “improper.”
The district court nevertheless concluded, with little
explanation, that the President’s opposition to “gender-
affirming care” was an improper objective. See QueerDoc,
807 F. Supp. 3d at 1301. The district court noted that
“[a]lmost every court and medical organization to address
the issue has recognized the benefit of providing gender
affirming care to individuals suffering from gender
dysphoria” and that “[s]everal states have codified
protections for gender-affirming care.” Id. (simplified). But
the President is entitled to a contrary view in an unsettled
scientific debate. Further, the Administration’s policy need
not be justified on “scientific” grounds alone. The
Administration may also consider ethical and philosophical
perspectives regarding the relationship between gender
identity and biological sex. See Skrmetti, 605 U.S. at 540

38 QUEERDOC, PLLC V. USDOJ
(Thomas, J., concurring) (“Setting aside whether sex-
transition treatments for children are effective, States may
legitimately question whether they are ethical.” (emphases
in original)); Loe, 692 S.W.3d at 239 (Blacklock, J.,
concurring) (explaining that the debate around gender-
affirming care for minors is not just a scientific question but
also “one of philosophy, morality, even religion.”).
Second, the Administration’s directives to DOJ to carry
out this policy did not render DOJ’s subpoena “improper.”
DOJ’s actions are “entitled to a presumption of
regularity.” Citizens to Preserve Overton Park, Inc. v.
Volpe, 401 U.S. 402, 415 (1971). This “long-standing”
principle holds that “in the absence of clear evidence to the
contrary,” a court presumes that government officials
“properly discharged their official duties.” Cruz v. Bondi,
146 F.4th 730, 739 (9th Cir. 2025) (quoting United States v.
Chem. Found., Inc., 272 U.S. 1, 14–15 (1926)). Yet the
district court inferred from the Administration’s general
opposition to gender-affirming care, along with its directives
to DOJ to issue subpoenas to providers of such care, that
DOJ had “issue[d] [the] subpoena not to investigate legal
violations but to intimidate and coerce [QueerDoc] into
abandoning lawful medical care.” QueerDoc, 807 F. Supp.
3d at 1299 (emphasis in original). In doing so, the district
court improperly disregarded the presumption of regularity.
Executive Order 14,187 directed DOJ to “prioritize
investigations” into entities that may be “misleading the
public about long-term side effects” of gender-affirming
care. 90 Fed. Reg. 8771, § 8(c). The Order also stated that
it “shall be implemented consistent with applicable law.” Id.
§ 11(b). The Bondi Memo directed DOJ to conduct only
“appropriate investigations” of potential FDCA violations.

QUEERDOC, PLLC V. USDOJ 39
To the extent that the directives ordered DOJ to end “gender-
affirming care,” they ordered DOJ to pursue that goal within
the bounds of the law. They did not order DOJ to act ultra
vires.
According to QueerDoc’s declaration, DOJ’s attorneys
stated that they were investigating QueerDoc because of the
directives contained in EO 14,168, EO 14,187, and the
Bondi Memo. But the fact that DOJ acted pursuant to these
high-level directives is not evidence that DOJ acted with an
improper purpose, since a court has no warrant to presume
that an agency carried out lawful directives in an unlawful
manner. See Ross and Morrison v. Reed, 14 U.S. 482, 486
(1816) (“It is a general principle to presume that public
officers act correctly until the contrary be shown.”).
Likewise, although DOJ officials did not give QueerDoc a
detailed justification for their investigation, they provided
QueerDoc with notice that their investigation related to
possible FDCA violations. That answer did not demonstrate
that DOJ was proceeding improperly. DOJ was not
obligated to divulge confidential information about its
investigation to QueerDoc, which was itself a subject of the
investigation. See United States v. Whispering Oaks
Residential Care Facility, LLC, 673 F.3d 813, 818 (8th Cir.
2012) (involving a HIPAA subpoena) (“[Recipient] cites no
legal authority for requiring the Government to justify its
administrative subpoenas by revealing the identity of any
informants, the information those informants may have
provided, or any other facts revealing the motives behind a
lawful investigation.”). Even the district court recognized
this principle when it explained that “the government need
not justify its decision to open an investigation.” QueerDoc,
807 F. Supp. 3d at 1302.

40 QUEERDOC, PLLC V. USDOJ
The district court should not have inferred DOJ’s bad
faith from political advocacy statements made by
government officials. Cf. Mullin v. Doe, No. 25-1083, 609
U.S. ____, 2026 WL 1825840, at *12 (U.S. June 25, 2026)
(“Political discourse by prominent public figures is
increasingly couched in terms that would have scandalized
the public just a short time ago. . . . But whatever one may
think of the cited statements, they are insufficient to show
that the [government acted out of animus].”). Given our
narrow review of administrative subpoenas and the heavy
burden required to demonstrate an improper purpose, these
public statements—coupled with important qualifying
language and the presumption of regularity—cannot taint an
otherwise valid government investigation. See Golden
Valley, 689 F.3d at 1113; Jose, 131 F.3d at 1328. And
QueerDoc presented no evidence of impropriety besides the
Administration’s public statements and directives. For
instance, QueerDoc proffered no evidence that DOJ acted on
behalf of one of QueerDoc’s market competitors, that DOJ
pursued a “claim it knows it cannot win” merely to satisfy
an ill-disposed senator, or that one of DOJ’s investigators
issued the subpoena merely to settle a “personal vendetta”
against QueerDoc. See, e.g., Cortese, 614 F.2d at 921;
Wheeling-Pittsburgh, 648 F.2d at 127; First Ala. Bank of
Birmingham, 440 F. Supp. at 1385.
In sum, QueerDoc did not provide “specific evidence of
improper intent,” Garner, 126 F.3d at 1146, and therefore
failed to carry its “heavy” burden to demonstrate that DOJ
issued the subpoena for an improper purpose. Jose, 131 F.3d
at 1328.

QUEERDOC, PLLC V. USDOJ 41
2
The district court’s finding of improper purpose was
erroneous. Equally misguided, however, was the district
court’s intrusion upon the President’s core constitutional
power to set law enforcement priorities and to order his
subordinate officers to carry out these enforcement
priorities.
To fulfill the President’s duty to “take Care that the Laws
be faithfully executed,” U.S. Const. art. II, § 3, “the
Executive Branch must prioritize its enforcement efforts.”
United States v. Texas, 599 U.S. 670, 679 (2023). The
Executive Branch lacks the resources to investigate every
potential violator of every law and must adapt its
enforcement priorities to the “ever-shifting public-safety and
public-welfare needs of the American people.” Id. at 680.
The Constitution therefore vests in the President the
“‘exclusive authority and absolute discretion’ to decide
which crimes to investigate and prosecute.” Trump v. United
States, 603 U.S. 593, 620 (2024) (quoting United States v.
Nixon, 418 U.S. 683, 693 (1974)). Further, although the
Constitution vests the entirety of the executive power in the
President, U.S. Const. art. II, § 1, “the President alone and
unaided could not execute the laws . . . [h]e must execute
them by the assistance of subordinates.” Myers v. United
States, 272 U.S. 52, 117 (1926). “[B]y virtue of the general
grant to him of the executive power,” the President may
exercise “administrative control” over executive officers,
which includes the power to “supervise” executive officers
and “guide their construction of the statutes under which
they act.” Id. at 135.
Here, the President established the Executive Branch’s
general policy of enforcing the FDCA against providers of

42 QUEERDOC, PLLC V. USDOJ
gender-affirming care in § 8(c) of EO 14,187. Subsequently,
his subordinates implemented this policy at increasing levels
of specificity through the Bondi Memo, the Shumate Memo,
and, ultimately, the investigation of QueerDoc. Indeed,
DOJ’s attorneys told QueerDoc that this investigation
proceeded because of the President’s executive orders, the
Bondi Memo, and the Shumate Memo. This sequence
reflects the ordinary operation of the Executive Branch. The
President sets broad policy that his subordinates
implement at increasingly specific levels down the
organizational hierarchy. See Trump v. Slaughter, No. 25-
332, 609 U.S. ____, 2026 WL 1855612, at *7 (U.S. June 29,
2026) (“The Constitution . . . establish[ed] a hierarchy—a
‘Chief Magistrate’ with whom the buck stops, and below
him various ‘assistants or deputies’ who ‘derive their offices
from his appointment’ and remain ‘subject to his
superintendence.’” (quoting The Federalist No. 72, p. 436
(C. Rossiter ed. 1961) (A. Hamilton))).
Yet the district court found that the Administration’s
opposition to the general practice of gender-affirming care
made any investigation that advanced this policy
“pretextual” and “improper.” QueerDoc, 807 F. Supp. 3d at
1303. The district court’s reasoning would require
subordinate executive officers either to act independently of
and contrary to the President’s policies or to refrain from
acting altogether. Either course would undermine the
President. Such reasoning would lead to a disordered
government, in which the President could neither
“supervise” executive officers nor “guide their construction
of the statutes under which they act.” Myers, 272 U.S. at
117, 135.
Further, if a President’s stated policy views are evidence
of improper purpose, as the district court held, the

QUEERDOC, PLLC V. USDOJ 43
administration of the federal government would crumble.
Every President has law enforcement priorities, just as every
President has signature policies (often, the former are
components of the latter). Consider a hypothetical that the
parties raised in their briefs: A President opposes online
sports gambling platforms because he believes that they
foster addiction and cause financial ruin, thereby harming
the public welfare. This President uses his bully pulpit to
advocate for comprehensive legislation that bans these
platforms, but as the legislative process grinds along, he also
uses existing tools of federal law to hold these platforms
accountable. Would it be “improper” for an IRS agent to
issue an otherwise valid civil tax summons to a gambling
company? Would the FTC be unable to investigate that
company for allegedly misleading gambling
advertisements? The district court’s reasoning, which
contains no limiting principle, would deem such actions
improper. That approach enables the federal judiciary to
intrude on some of the President’s fundamental prerogatives:
his decisions about which policies to advance, how to
allocate scarce law-enforcement resources, and how to
articulate his policies to the public. That approach is clearly
wrong and underscores the magnitude of the district court’s
error.
3
None of the counterarguments raised by the dissent,
QueerDoc, the court below, or QueerDoc’s amici gives us
any reason to believe that an improper purpose exists here.
a
We reject the contention that DOJ’s allegedly “post hoc”
attempts to justify the subpoena illustrate the improper
purpose for which it was issued. Brief for Appellee 37; Brief

44 QUEERDOC, PLLC V. USDOJ
for Former DOJ Attorneys as Amici Curiae 17–23; Dissent
73–78.
This argument invokes the “foundational principle of
administrative law,” which holds “that a court may uphold
agency action only on the grounds that the agency invoked
when it took the action.” Michigan v. EPA, 576 U.S. 743,
758 (2015) (citing SEC v. Chenery Corp., 318 U.S. 80, 87
(1943)). But the rule against “post hoc justifications” does
not apply in this case because DOJ’s investigatory purpose
as to QueerDoc has remained constant throughout: to
investigate potential violations of the FDCA’s misbranding
provisions. Indeed, from EO 14,187 to the Shumate Memo,
the government has consistently stated that its investigation
involved possible “violations of the [FDCA] by any entity
that may be misleading the public about long-term side
effects of chemical and surgical mutilation,” 90 Fed. Reg.
8771, § 8(c), including “doctors, hospitals, pharmaceutical
companies, and other appropriate entities,” ER 55–56
(Shumate Memo).
Moreover, an agency investigation is dynamic. The
agency’s reasons for issuing a subpoena to a party may
change as its investigators acquire new information.
Requiring an agency to justify itself at the outset and to
adhere to that justification throughout the investigation
would frustrate the agency’s investigatory function. United
States v. Tan, 16 F.4th 1346, 1352 (9th Cir. 2021)
(“[Requiring] specificity ahead of time could hinder the
investigation by . . . foreclosing the pursuit of new, relevant
avenues of inquiry that come to light . . . .”). So, absent a
clear statutory mandate, we do not require agencies to
“charge first and investigate later.” Reich, 32 F.3d at 444;
see also EPA v. Alyeska Pipeline Serv. Co., 836 F.2d 443,
447 (9th Cir. 1988), overruled on other grounds by McLane,

QUEERDOC, PLLC V. USDOJ 45
581 U.S. at 80–81 (“EPA need not allege that it has a
suspicion or has knowledge of any facts indicating that the
law has been violated.”).
HIPAA imposes no such mandate on DOJ. See 18
U.S.C. § 3486(a). HIPAA authorizes DOJ to issue
investigative subpoenas to enforce a limited set of laws and
to do so in accordance with specified procedures, but it does
not require DOJ to issue a formal charge against a suspected
wrongdoer as a predicate to exercising this power. See id.
§§ 24(a), 3486. Congress included a pre-investigation
charging requirement in other statutes, such as Title VII,
which permits the EEOC to issue an investigatory subpoena
only after a “sworn charge of discrimination” has been filed.
Univ. of Penn. v. EEOC, 493 U.S. 182, 190 (1990). The
absence of such a requirement under HIPAA reflects
Congress’s judgment about the proper balance between
efficient agency investigations and the risk of governmental
abuse in federal health care investigations. We have no
warrant to amend HIPAA to add restrictions on DOJ’s
investigatory power. Cf. Vermont Yankee Nuclear Power
Corp. v. NRDC, 435 U.S. 519, 549 (1978) (“The court
should . . . not stray beyond the judicial province . . . to
impose upon the agency its own notion of which procedures
are ‘best’ or most likely to further some vague, undefined
public good.”).
b
We also reject the contention that the purported breadth
of the subpoena and its alleged incongruence (“mismatch”)
with DOJ’s FDCA theory of investigation were probative of
the agency’s bad faith. QueerDoc, 807 F. Supp. 3d at 1303–
04; Brief for Appellee 35; Dissent 80–85.

46 QUEERDOC, PLLC V. USDOJ
To the extent that any overbreadth or mismatch could
help establish improper purpose in the abstract, these
considerations do not support the district court’s improper
purpose determination in this case. There was no mismatch
between the government’s investigation and QueerDoc’s
activities. Hence, DOJ made out its prima facie case that the
subpoena was statutorily authorized. See Golden Valley, 689
F.3d at 1113, 1115. QueerDoc need not be a manufacturer
or distributor to receive the HIPAA subpoena at issue here.
As DOJ explained in the Gordus Declaration, certain
statements on QueerDoc’s website may themselves violate
the FDCA’s misbranding provisions. See 21 U.S.C.
§ 352(a). Given the labyrinthine supply chains in the
pharmaceutical industry and the corresponding complexity
of federal health care investigations, DOJ must have the
flexibility to seek information from ancillary entities, such
as QueerDoc, that may possess relevant information that
could help establish FDCA misbranding violations by
upstream entities such as manufacturers and distributors.
Nor does the breadth of the subpoena’s production
requests suggest bad faith in this case. As explained above,
the subpoena seeks information relevant to potential FDCA
misbranding violations. That relevance is sufficient to
establish DOJ’s prima facie case for enforcing the subpoena.
The dissent’s principal concern is with the subpoena’s
requests for patient information, which make up only three
of the fifteen document requests. See Dissent 80–82. But
even if the subpoena is overbroad—an issue the district court
did not reach and the parties briefed only minimally—the
proper remedy would be to narrow it, not to quash it in its
entirety, as the district court did here. See Morton Salt, 338
U.S. at 653–54; In re Subpoena Duces Tecum, 228 F.3d at
349.

QUEERDOC, PLLC V. USDOJ 47
c
We reject the argument, advanced by QueerDoc and its
amici, that the Administration’s policy was improper
because it conflicts with Washington state law, which
authorizes the provision of “gender-affirming care” to
minors. See Brief for Appellee 42 (“DOJ issued this
subpoena to end medical care that is lawful under the laws
of numerous states.” ); see also Brief for Former DOJ
Attorneys as Amici Curiae 19–20; Brief for State of
Washington et al. as Amici Curiae 4–13. Whether an activity
is authorized by state law is irrelevant to determining the
lawful authority for a federal investigation, because federal
law is supreme. U.S. Const. art. VI, cl. 2. The State of
Washington cannot shield a resident company from having
to comply with federal law.
QueerDoc and its amici might be understood to argue
that DOJ’s interference with lawful state activities suggests
that DOJ exceeded its authority under the FDCA. Under this
view, an interpretation of the FDCA that permits DOJ to
encroach upon the practice of medicine might exceed
Congress’s enumerated powers. Whatever the merits of
such arguments, they are “defense[s] to a potential
subsequent lawsuit” and are thus premature at the subpoena-
enforcement stage. Karuk Tribe, 260 F.3d at 1077–78
(citing Endicott Johnson, 317 U.S. at 509). Further, those
arguments likely have no bearing on the “improper purpose”
inquiry, which is distinct from the question of statutory
authority. See Miccosukee Tribe of Indians of Fla. v. United
States, 698 F.3d 1326, 1331–32 (11th Cir. 2012)
(distinguishing a subpoena’s “underlying validity” from
whether the subpoena was issued for an improper purpose);
Mazurek v. United States, 271 F.3d 226, 231 (5th Cir. 2001)
(“Mazurek incorrectly conflates his challenge to [the

48 QUEERDOC, PLLC V. USDOJ
agency’s statutory authority] and the alleged illegitimacy of
the [agency’s] investigation.”).
d
We respectfully disagree with our dissenting colleague,
who contends that we must be “highly deferential” to the
district court’s “factual determination” that DOJ issued the
subpoena for an improper purpose. Dissent 66. The issue
here is not one of fact. The district court conducted no
evidentiary hearings and took no testimony. Instead, the
district court relied on the Administration’s public
statements to infer an improper purpose on the part of DOJ.
That did not amount to fact-finding but rather the drawing of
legal conclusions from undisputed facts.
There is no dispute that the current Administration has a
policy objective of ending gender-affirming care. See
Opening Brief for Appellant 27 (“It is certainly uncontested
that the President, the Attorney General, and others in the
administration have expressed strong moral, ethical, and
policy opposition to [gender-affirming care.]”). However,
the questions before us on appeal are whether the Executive
Branch’s public-facing statements reflecting a general
policy objective can establish an improper purpose, and
further, whether the Executive Branch’s policy statements
can undermine an otherwise valid subpoena. It is simply of
no moment that the district court found that DOJ acted for
the purpose of ending gender-affirming care, because that
finding was based on several misapprehensions about “what
counts as an illicit motive” of the government, which are
“legal issues” that we review de novo. Clarke, 573 U.S. at
256. For two reasons, the dissent errs in its resolution of
these legal issues.

QUEERDOC, PLLC V. USDOJ 49
First, as discussed above, the Administration’s general
policy objective of ending gender-affirming care in a manner
consistent with existing law is not an “improper purpose.”
See supra Part III(C)(1). It bears repeating that not even
QueerDoc’s counsel contends that this policy goal was
improper. See supra note 4; Oral Argument at 18:18–18:52.
Indeed, the dissent appears to concede this point,
acknowledging that “the President may adopt a policy
position on gender-affirming care[.]” Dissent 89. If this
policy objective of the Executive Branch was proper, then it
was proper for DOJ, as an agency within the Executive
Branch, to use its authority under HIPAA to carry out this
broader policy.
To avoid the difficult argument that the President’s
policy views were themselves “improper,” the dissent
attempts to distinguish DOJ’s reasons for acting from the
President’s general policy positions. See, e.g., Dissent 89
(“That the President can voice policy opposition to gender
affirming care does not mean that the DOJ can weaponize
its statutorily constrained subpoena authority . . . .”
(emphases in original)). But as a conceptual matter, the
dissent’s proffered division between DOJ and the President
is misguided. The Constitution vests the entirety of the
executive power in the President. U.S. Const. art. II, § 1.
DOJ, as an agency within the Executive Branch, thus
exercises no executive power except that which the President
has delegated to it. See Slaughter, 609 U.S. at ____, 2026
WL 1855612, at *21 (recognizing that “these officers
exercise the President’s power, not their own, and thus must
be responsible to him” (emphasis in original)). The
President’s control over DOJ must be especially great, as
DOJ is charged with the “investigation and prosecution of
crimes,” which “is a quintessentially executive function.”

50 QUEERDOC, PLLC V. USDOJ
Morrison v. Olson, 487 U.S. 654, 706 (1988) (Scalia, J.,
dissenting). As the dissent concedes, the President’s policy
objective of ending gender-affirming care, consistent with
applicable law, was not itself unlawful. See Dissent 89, 91.
The dissent never explains why DOJ may not then act to
achieve that policy objective pursuant to its investigatory
authority under HIPAA.
Second, as explained above, nothing prevents DOJ from
issuing an otherwise valid subpoena that is consistent with
the President’s policy agenda. Congress empowered DOJ to
investigate violations of the health care laws. It is not the
case that DOJ is unable to investigate an area simply because
the President or other high-ranking officials have voiced
policy opinions on the topic. With essentially no
explanation, the district court deemed illegitimate the
Administration’s policy objections to gender-affirming care
and then inferred that the subpoena to QueerDoc was based
on this illegitimate purpose. That legal conclusion was
incorrect. Regulated entities routinely receive subpoenas
from government agencies that request information.
QueerDoc, which operates in the highly regulated
pharmaceutical industry, is no exception. We are hard-
pressed to imagine that the dissent would conduct such an
intrusive review of the government’s purpose for issuing this
subpoena but for the fact that this case involves gender-
affirming care.
In a final effort to justify the district court’s finding of
improper purpose, the dissent argues that it is improper for
DOJ to issue an administrative subpoena for the purpose of
putting the subpoena’s recipient out of business. See Dissent
89 (arguing that DOJ cannot “weaponize its statutorily
constrained subpoena authority as a tool to put health care
providers out of business.”). But the fear that the costs of

QUEERDOC, PLLC V. USDOJ 51
compliance will force a party to shutter its business
implicates the question of undue burden, not of improper
purpose. QueerDoc has an interest in continuing to operate
its business. That interest is adequately protected by the
“undue burden” restriction on an agency’s subpoena power,
under which a court may modify the terms of a subpoena if
“compliance threatens to unduly disrupt or seriously hinder
normal operations of [the recipient’s] business.” Texaco,
555 F.2d at 882.
Lastly, we respectfully disagree with the dissent’s
suggestion that our decision undermines the separation of
powers by rendering judicial review of administrative
subpoenas “a hollow formality.” See Dissent 95. Our
decision lays down no novel principle. It reflects a
straightforward application of our well-established law
regarding the enforcement of agency subpoenas. The
agency still bears the initial burden of demonstrating that it
has issued a subpoena pursuant to statutory authority. See
supra Part III(B). Even if the agency discharges this burden,
a recipient remains protected against having to comply with
unduly burdensome or overbroad subpoenas. See infra Part
IV. Nor do we narrow or amend the legal standards that
govern a court’s “improper purpose” inquiry. See, e.g.,
Golden Valley, 689 F.3d at 1113. We hold only that
QueerDoc did not meet its “heavy” burden to demonstrate
improper purpose in this case. Jose, 131 F.3d at 1328.
6

6
That longstanding, uncontroversial standard, which the dissent
mentions once, is not fairly described as “hollow.” Dissent 67, 95. Nor
does it permit the so-called “potent” judicial review in the way that the
dissent envisions it. Dissent 86, 88, 95 (citing SEC v. Arthur Young &
Co., 584 F.2d 1018, 1024 n.39 (D.C. Cir. 1978)). In Arthur Young, the
D.C. Circuit explained in a footnote that “while the court’s role in
subpoena enforcement is narrow, within its confines it is potent.” 584

52 QUEERDOC, PLLC V. USDOJ
At bottom, the dissent’s argument rests on the
supposition that the Administration’s policy goal of ending
gender-affirming care through the enforcement of existing
federal law was improper, so any subpoena issued in that
area is invalid even if it validly seeks to investigate potential
violations of the health care laws. We cannot agree with a
position that is so at odds with our circuit precedent, with the
proper role of the federal judiciary within our constitutional
system, and indeed with QueerDoc’s own representations at
oral argument. See supra note 4. It would be a stunning
expansion of the judicial power to hold that the little-used
authority to quash otherwise valid subpoenas in their entirety
when they are issued for an “improper purpose”—an
authority meant to police fraud on the court and other
extreme abuses of official power—allows a federal court to
strike down statutorily authorized subpoenas merely because
the agency issued those subpoenas in service of a general
policy that a judge deems “improper.”
IV
Because the district court decided only that the subpoena
was motivated by an improper purpose, it did not rule on

F.2d at 1024 n.39 (internal citation omitted). That statement merely
reflects the principle that courts retain the “duty not to rubber-stamp [an
agency’s subpoenas], but to adjudge their legitimacy.” ACICS, 854 F.3d
at 689. It does not permit the dissent’s sweeping judicial review, for in
most cases, “‘when the information sought falls within the purview of
the regulatory agency’s authority,’ judicial review of an administrative
subpoena typically results in enforcement.” Id. (quoting FEC v.
Machinists Non-Partisan Pol. League, 655 F.2d 380, 385–86 (D.C. Cir.
1981)). Nor does the judicial review that courts exercise in this context
detract from a subpoena recipient’s “heavy” burden to show an improper
purpose. See id. (recognizing that “[i]n extraordinary circumstances, a
court also may inquire into allegations that an agency is using an
administrative subpoena for an improper purpose” (emphasis added)).

QUEERDOC, PLLC V. USDOJ 53
QueerDoc’s arguments that DOJ’s subpoena is overbroad
and poses an undue burden. We do not resolve these issues
today. Instead, we remand them for the district court to
consider in the first instance. But we offer the following
guidance on remand.
First, the parties are expected to cooperate on remand to
narrow or resolve any potential disagreements about the
scope of discovery. Before the district court may grant relief
from an overbroad or unduly burdensome subpoena,
QueerDoc must make a “reasonable effort to reach [an]
accommodation with the government.” Morton Salt, 338
U.S. at 653; see also In re Subpoena Duces Tecum, 228 F.3d
at 349 (“[B]efore a court will conclude that a subpoena is
‘arbitrarily excessive,’ it may expect the person served ‘to
have made reasonable efforts . . . to obtain reasonable
conditions’ from the government.” (quoting Morton Salt,
338 U.S. at 653)); Doe, 253 F.3d at 268–69 (rejecting undue
burden claim in part because the recipient “made no attempt
to reach a reasonable accommodation with the
government.”).
Second, because DOJ’s subpoena requests information
that is relevant to an authorized HIPAA investigation, any
determinations by the district court that limit the scope of
DOJ’s discovery will require proper legal and evidentiary
support. See Texaco, 555 F.2d at 882 (“The burden of
showing that the request is unreasonable . . . is not easily met
where, as here, the agency inquiry is pursuant to a lawful
purpose and the requested documents are relevant to that
purpose.”).
Because undue burden is evaluated and remedied on a
request-by-request basis, QueerDoc must explain why
compliance with each request would be burdensome.

54 QUEERDOC, PLLC V. USDOJ
QueerDoc’s evidence of undue burden must consist of more
than bare conclusory declarations. See FTC v. Shaffner, 626
F.2d 32, 38 (7th Cir. 1980) (rejecting undue burden when
recipient made only the “conclusory allegation that
compliance with the subpoena would ‘severely interfere,
disrupt and temporarily terminate [recipient’s] legal
practice.’”). Rather, QueerDoc must provide objective and
specific evidence, such as “the number of files involved, the
number of estimated work hours required to effect
compliance, [or] the estimated costs of compliance.” Id.
A subpoena request that requires production of a large
volume of documents or a high proportion of the recipient’s
records does not necessarily constitute an undue burden.
See, e.g., Garner, 126 F.3d at 1145–46 (upholding a
subpoena that required production of over one million
documents); NLRB v. G.H.R. Energy Corp., 707 F.2d 110,
114 (5th Cir. 1982) (“[T]he production of thousands of
documents is also insufficient to establish
burdensomeness.”); Walsh v. Alight Sols., LLC, 44 F.4th
716, 726–27 (7th Cir. 2022) (“[L]arge production requests
are not necessarily unduly burdensome.”); NLRB v. Carolina
Food Processors, 81 F.3d 507, 513 (4th Cir. 1996) (similar).
Nor does a subpoena impose an undue burden just because
compliance will be time- and resource-intensive. See EEOC
v. Citicorp Diners Club, Inc., 985 F.2d 1036, 1040 (10th Cir.
1993) (upholding a subpoena for which compliance required
“two full-time employees working approximately six
months”).
Finally, the district court may entertain any objections
specific to DOJ’s requests for patient medical records if
QueerDoc argues that compliance with these requests would
raise concerns about patient privacy. The district court and
the parties should also consider whether protective orders or

QUEERDOC, PLLC V. USDOJ 55
other devices should be used to ameliorate any concerns
about privacy.
* * *
For the foregoing reasons, the district court erred in
quashing the subpoena on the basis that it was issued for an
“improper purpose.” We reverse the district court’s order
quashing the subpoena and remand for further proceedings
consistent with the above guidance.
REVERSED AND REMANDED.

PAEZ, Circuit Judge, dissenting:
As I see this case, the narrow question we must decide is
whether the district court’s finding that the Department of
Justice (“DOJ”) issued the subpoena to QueerDoc in bad
faith was clearly erroneous. It was not. DOJ submitted
essentially nothing in opposition to the motion to quash the
subpoena. There is, however, a mountain of evidence that
corroborates that DOJ used the threat of criminal
investigation to pressure health care providers to stop
offering gender-affirming care. The record amply supports
the district court’s finding that DOJ issued the subpoena as
pretext for its real goal of eliminating gender-affirming care,
not in good faith investigation of potential violations of the
Federal Food, Drug, and Cosmetic Act (“FDCA”).
In evading our highly deferential standard of review and
the extensive record evidence to the contrary, the majority
manufactures legal errors that will require federal courts to
rubber stamp investigations initiated by the DOJ to harass
opponents and chill disfavored causes, so long as the
investigation serves the President’s policy priorities. But the

56 QUEERDOC, PLLC V. USDOJ
President’s authority to voice a policy position is far broader
than the DOJ’s statutorily constrained authority to issue
subpoenas. Because the law does not permit the DOJ to
initiate sham investigations—even if the President says to do
so—I dissent.
I.
We review a district court’s decision to quash an
administrative subpoena for abuse of discretion. McLane
Co. v. EEOC, 581 U.S. 72, 75 (2017). Whether the district
court identified the correct legal rule is reviewed de novo.
United States v. Hinkson, 585 F.3d 1247, 1261–62 (9th Cir.
2009). Part of the legal rule includes “what counts as an
illicit motive.” United States v. Clarke, 573 U.S. 248, 256
(2014).
But the agency’s actual purpose in issuing a subpoena is
a factual question subject to deferential clear error review.
Ponsford v. United States, 771 F.2d 1305, 1307–08 (9th Cir.
1985).
1
Evaluating motive and purpose are “the ‘kind of
fact-intensive, close calls’ better suited to resolution by the
district court than the court of appeals.” McLane, 581 U.S.
at 81 (citations omitted). We may not reverse because we
“would have weighed the evidence differently” had we “s[at]
as the trier of fact” or because there was some “evidence to
contradict this view.” Anderson v. Bessemer City, 470 U.S.
564, 574 (1985); United States v. Ritchie, 15 F.3d 592, 599
(6th Cir. 1994). Unless the district court’s finding was
“illogical, implausible, or without support in inferences that

1
Accord United States v. Gertner, 65 F.3d 963, 970 (1st Cir. 1995); La
Mura v. United States, 765 F.2d 974, 981 (11th Cir. 1985); Groder v.
United States, 816 F.2d 139, 145 (4th Cir. 1987); United States v.
Ritchie, 15 F.3d 592, 599 (6th Cir. 1994); United States v. Krauth, 769
F.2d 473, 478 (8th Cir. 1985).

QUEERDOC, PLLC V. USDOJ 57
may be drawn from the record,” we must affirm. Hinkson,
585 F.3d at 1262.
The majority’s suggestion that the district court’s finding
of DOJ’s purpose in issuing the subpoena “is not one of fact”
because the “district court relied solely on a cold record” is
misguided. Majority 48; Crittenden v. Chappell, 804 F.3d
998, 1006 (9th Cir. 2015). We review factual findings for
clear error “even when the district court’s findings do not
rest on credibility determinations, but are based instead on
physical or documentary evidence or inferences from other
facts.” Anderson, 470 U.S. at 574.
“We may affirm a district court’s judgment on any
ground supported by the record, whether or not the decision
of the district court relied on the same grounds.” Atel Fin.
Corp. v. Quaker Coal Co., 321 F.3d 924, 926 (9th Cir. 2003).
II.
An administrative agency seeking to enforce a subpoena
bears the burden of establishing that (1) Congress has
granted the agency the authority to investigate; (2) the
agency has followed the procedural requirements; and
(3) the evidence sought is relevant and material to the
investigation. United States v. Golden Valley Elec. Ass’n,
689 F.3d 1108, 1113 (9th Cir. 2012). If the government
establishes its prima facie case, the burden shifts to the
recipient to challenge the subpoena on “any appropriate
grounds.” United States v. Jose, 131 F.3d 1325, 1328 (9th
Cir. 1997) (en banc) (quoting Reisman v. Caplin, 375 U.S.
440, 449 (1964)).
The government fails on both fronts. I first address how
the government failed to satisfy its prima facie burden to
enforce the subpoena against QueerDoc. Even if it did,

58 QUEERDOC, PLLC V. USDOJ
QueerDoc has nonetheless satisfied its burden to quash the
subpoena because it was issued for an improper purpose.
Finally, I respond to the majority’s contrary conclusions,
which ignore the role of Congress in authorizing agency
action and erroneously conflate the “purpose” of the
President with the “purpose” of a subpoena.
A.
I start with the government’s prima facie burden. An
affidavit or declaration from the investigating agency
explaining the purpose of the investigation may be sufficient
to satisfy the agency’s prima facie burden. FDIC v. Garner,
126 F.3d 1138, 1143 (9th Cir. 1997). Despite the majority’s
near-dispositive reliance on the declaration from Allan
Gordus (“Gordus Declaration”), that declaration was not
properly before the district court when it ruled on the motion
to quash.
After QueerDoc moved to quash the subpoena, DOJ
declined to submit any affidavit attesting to its investigatory
purpose. While the motion was pending in the district court,
multiple district courts granted analogous motions to quash.
See In re Admin. Subpoena No. 25-1431-019, 800 F. Supp.
3d 229, 239 (D. Mass. 2025); In re Subpoena Duces
Tecum No. 25-1431-016, 2025 WL 3562151, at *12–13
(W.D. Wash. Sept. 3, 2025). Before the district court ruled
on the motion, DOJ filed a “praecipe” requesting leave to
file the Gordus Declaration attesting to the purpose of the
investigation. The district court granted QueerDoc’s motion
to strike the Gordus Declaration pursuant to the court’s local
rules. QueerDoc, PLLC v. U.S. Dep’t of Just., 807 F. Supp.
3d 1295, 1303 n.2 (W.D. Wash. 2025); see W.D. Wash. Loc.
Civ. R. 7(m). The government does not now contend that
the district court abused its discretion in striking the Gordus

QUEERDOC, PLLC V. USDOJ 59
Declaration, Bias v. Moynihan, 508 F.3d 1212, 1223 (9th
Cir. 2007), and we therefore may not substantively consider
whether the Declaration satisfied the government’s prima
facie burden.
Pursuant to the Western District of Washington’s Local
Rule 7(m), “Praecipe,” “[p]arties are expected to file
accurate, complete documents, and the failure to do so may
result in the court’s refusal to consider later filed corrections
or additions to the record.” W.D. Wash. Loc. Civ. R. 7(m).
A court may grant an exception where a party: (1) identifies
an “error” in a filed document and seeks permission through
a praecipe to file a “corrected document,” or (2) seeks to file
an additional document “in support of a previous filing,” and
“set[s] forth why the document was not included with the
original filing and reference[s] the original filing by docket
number” in the praecipe. Id. The district court struck the
Gordus Declaration, explaining that under Rule 7(m), “a
praecipe serves a narrow function: to correct clerical errors
or, in limited circumstances, to add documents inadvertently
omitted from an original filing,” and is “not a vehicle for
submitting new evidence or supplementing legal arguments
after briefing has closed.”
2
QueerDoc, 807 F. Supp. 3d at
1303 n.2.
District courts “have broad discretion in interpreting and
applying their local rules.” Delange v. Dutra Const. Co.,
183 F.3d 916, 919 n.2 (9th Cir. 1999) (quoting Miranda v.
Southern Pac. Transp., 710 F.2d 516, 521 (9th Cir. 1983)).
“Only in rare cases will we question the exercise of

2
As explained in Section III.A.2, the Gordus Declaration did not merely
expand upon the government’s prior positions, as the majority contends.
Rather, the Gordus Declaration proffered investigatory theories,
justifications, and facts not previously presented to the district court.

60 QUEERDOC, PLLC V. USDOJ
discretion in connection with the application of local rules.”
Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (quoting
United States v. Warren, 601 F.2d 471, 474 (9th Cir. 1979)).
Neither the majority nor the government offer any
persuasive reason for why this is a “rare case[]” in which the
district court’s application of its own local rules was an
abuse of its “broad” discretion. Id.; Delange, 183 F.3d at
919 n.2 (quoting Miranda, 710 F.2d at 521).
Instead, the majority strains to rationalize its
consideration of the Gordus Declaration, perhaps
recognizing that without the Declaration, the government did
not provide the district court with any evidence to satisfy its
“burden.” Crystal v. United States, 172 F.3d 1141, 1144 (9th
Cir. 1999). Each disingenuous justification falls short.
First, the majority reasons, the government was not on
notice that it had the burden to establish the purpose of the
investigation until another district court quashed an
analogous subpoena. See In re Admin. Subpoena No. 25-
1431-019, 800 F. Supp. 3d 229. But we have long held that
the government bears the “burden” of establishing that “the
investigation will be conducted for a legitimate purpose” and
that “the material being sought is relevant to that purpose,”
a burden that “may be satisfied by a declaration from the
investigating agent.” Crystal, 172 F.3d at 1143–44; United
States v. Dynavac, Inc., 6 F.3d 1407, 1414 (9th Cir. 1993).
Next, the majority contends that the district court
imposed an “improperly high standard” and should have
allowed the government to satisfy that standard by filing the
Declaration. Majority 27 n.2. Not so. The district court
simply recognized that improper purpose analysis requires
“more muscular review” than whether the government
satisfied its prima facie burden, rejecting the government’s

QUEERDOC, PLLC V. USDOJ 61
argument that courts may not consider whether the
government acted in bad faith. QueerDoc, 807 F. Supp. 3d
at 1302. The majority appears to agree with the district court
that the improper purpose inquiry is at least more intrusive
than the “slight burden of demonstrating relevance.”
Majority 30. In context, the district court’s decision to
impose greater scrutiny on the government’s purpose,
compared to the issue of relevance, is not inconsistent with
our prior description that such scrutiny is, overall, “narrow.”
Golden Valley, 689 F.3d at 1113 (citation omitted).
Finally, the majority claims we have discretion to
consider the Declaration “[e]ven if the district court did not
err in striking [it].” Majority 27 n.2. The majority distorts
the doctrine of forfeiture to reach its preferred result. We
may have discretion to consider the antecedent question of
whether the district court abused its discretion
notwithstanding the government’s failure to raise this issue
on appeal. See, e.g., Williams v. Gerber Prods. Co., 552
F.3d 934, 940 n.5 (9th Cir. 2008). But we do not have
discretion to consider the Declaration itself absent a
determination that the district court abused its discretion in
striking it.
The Federal Rules of Appellate Procedure enable circuit
courts to review stricken filings to determine whether the
district court’s decision to strike was erroneous. Fed. R.
App. P. 10(a)(1). But we may not rely upon correctly
stricken materials to upset a district court’s ruling. Our
review is “confined to the record that was properly before

62 QUEERDOC, PLLC V. USDOJ
the district court when it made its decision.”
3
Rios-Jimenez
v. Principi, 520 F.3d 31, 39 (1st Cir. 2008) (emphasis
added); see also Chelf v. Prudential Ins. Co. of Am., 31 F.4th
459, 464 n.2 (6th Cir. 2022) (rejecting request to review
documents on appeal that the district court “declined to
consider”).
This makes sense. Our job is to determine whether the
district court erred based on the record appropriately before
it at the time it rendered its decision. For example, if a
district court properly excluded declarations on summary
judgment, we could not rely upon the stricken declarations
to find a genuine dispute of material fact and reverse the
district court’s decision granting summary judgment. See
Milczak v. Gen. Motors, LLC, 102 F.4th 772, 781 (6th Cir.
2024). Likewise, if a district court properly excluded
inadmissible evidence, we could not invoke that evidence as
grounds for overturning the district court’s decision. To do
so would subvert our system of review.
B.
With the scope of the record clarified, this becomes an
easy case. Considering the information properly before the
district court at the time it rendered its decision, the
government failed to satisfy its prima facie burden of

3
Here, the district court docket literally reads:
STRICKEN GOVERNMENT'S PRAECIPE TO FILE
ADDITIONAL DOCUMENT, filed by Defendant
United States Department of Justice. (Attachments: #
1 Declaration of Government Attorney Allan Gordus,
# 2 Exhibit 1 to Declaration of Allan Gordus, # 3
Exhibit 2 to Declaration of Allan Gordus, # 4 Exhibit
2 to Declaration of Allan Gordus (Folder 2), # 5
Exhibit 2 to Declaration of Allan Gordus (Folder 3)).

QUEERDOC, PLLC V. USDOJ 63
showing the information subpoenaed was relevant and
material to its purported investigatory purpose. See Reich v.
Montana Sulphur & Chem. Co., 32 F.3d 440, 447 (9th Cir.
1994) (explaining that the agency must show “that the
documents it requests are relevant to the purpose of an
authorized investigation”). Although the government’s
burden to establish relevance is “not great,” United States v.
Goldman, 637 F.2d 664, 667 (9th Cir. 1980), the agency may
not engage in a “fishing expedition.” Peters v. United States,
853 F.2d 692, 697 (9th Cir. 1988) (citation omitted); In re
Subpoena Duces Tecum, 228 F.3d 341, 349 (4th Cir. 2000).
That is, the government must establish a “realistic
expectation rather than an idle hope that something may be
discovered.” Goldman, 637 F.2d at 667 (quoting United
States v. Harrington, 388 F.2d 520, 524 (2d Cir. 1969)).
The government did not file any affidavits attesting to
the relevance of its expansive production demands in
responding to QueerDoc’s motion to quash. See Garner,
126 F.3d at 1143. DOJ arguably offered one justification,
stating that its requests for information about billing and
coding “relate to how [QueerDoc’s] providers billed for
medical services to prescribe or deliver, inter alia, the
pharmaceuticals in question.” This purported justification,
echoed by the majority, is insufficient to satisfy the
government’s prima facie burden. The FDCA regulates
“misbranding” and “adulteration,” not billing or coding. See
21 U.S.C. § 331(b). As the majority acknowledges, the
FDCA does not regulate “a doctor’s ability to prescribe
drugs.” Majority 11. Moreover, QueerDoc does not submit
claims to “health care benefit program[s].” See 18 U.S.C.
§ 24(a)(2).
Nor did the June 11, 2025 memorandum issued by
Assistant Attorney General for the Civil Division Brett

64 QUEERDOC, PLLC V. USDOJ
Shumate (“Shumate Memo”) satisfy the government’s prima
facie burden under the FDCA. The Shumate Memo directed
FDCA investigations into “pharmaceutical companies that
manufacture drugs used in connection with so-called gender
transition and (2) dealers such as online pharmacies
suspected of illegally selling such drugs.” But QueerDoc is
neither a drug manufacturer nor a pharmacy.
In sum, DOJ failed to satisfy its prima facie burden of
establishing that the records subpoenaed were material and
“relevant to the purpose of an authorized [FDCA]
investigation.” Reich, 32 F.3d at 447. At most, DOJ’s
sweeping demands for QueerDoc’s records established only
an “idle hope” of uncovering information relevant to its
stated investigatory purpose. Goldman, 637 F.2d at 667
(citation omitted).
Given DOJ’s failure to carry its burden, I would affirm
the district court’s quashal on this alternative ground. See
Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 494 F.3d 788, 794
(9th Cir. 2007).
III.
Even assuming the government satisfied its prima facie
burden, the district court’s decision to quash the subpoena
should be affirmed because ample evidence supports its
finding that the subpoena was issued in bad faith.
“Subpoena enforcement power is not limitless.” FTC v.
Ken Roberts Co., 276 F.3d 583, 586 (D.C. Cir. 2001). A
court may not enforce an administrative subpoena where it
“would be an abusive use of the court’s process.” United
States v. Powell, 379 U.S. 48, 51 (1964). “Such an abuse
would take place if the [subpoena] had been issued for an
improper purpose,” including “harass[ment],” “pressur[ing]

QUEERDOC, PLLC V. USDOJ 65
[the recipient] to settle a collateral dispute,” or “any other
purpose reflecting on the good faith of the particular
investigation.” Id. at 58.
“The authority of an administrative agency to issue
subpoenas for investigatory purposes is created solely by
statute.” United States ex rel. Richards v. De Leon
Guerrero, 4 F.3d 749, 753 (9th Cir. 1993) (quoting Peters,
853 F.2d at 696); United States v. LaSalle Nat. Bank, 437
U.S. 298, 316 n.18. Because an agency’s subpoena power is
authorized by statute, the issuance of a subpoena for a
purpose other than the purpose authorized by Congress is
improper. The Health Insurance Portability and
Accountability Act of 1996 (“HIPAA”), 18 U.S.C.
§ 3486(a)(1)(A)(i)(I), authorizes subpoenas solely to
investigate a “[f]ederal health care offense,” which requires
that a violation or conspiracy of the FDCA “relates to a
health care benefit program.” 18 U.S.C. § 24(a)(2). Neither
the government nor the majority argues that all gender-
affirming care violates the FDCA, so ending gender-
affirming care cannot be an authorized investigative
purpose. The “dispositive question” is whether the record
shows that DOJ issued the subpoena in “honest[]” and “good
faith” “pursuit of the congressionally authorized purpose[]”
of investigating a federal health care offense. LaSalle, 437
U.S. at 316, 317 n. 19.
Importantly, a determination that the government
satisfied its prima facie burden does not obviate the improper
purpose inquiry. These are separate analytic steps. See infra
Section III.A.4. When the government establishes that the
information sought is relevant to an investigation into
plausible federal health care offenses, but the subject of the
subpoena establishes that this purpose was merely a pretext

66 QUEERDOC, PLLC V. USDOJ
for a different, impermissible goal, the district court may
properly quash the subpoena.
Our inquiry at this stage is highly deferential. An
agency’s motive or purpose in issuing a subpoena is
quintessentially a factual determination made by the district
court and reviewed on appeal for clear error. Thus, if the
district court’s finding that DOJ issued the subpoena to
“harass” QueerDoc or to “pressure” it to “settle a collateral
dispute” (to put QueerDoc out of business or otherwise end
its provision of gender-affirming care) is logical, plausible,
and supported by the record, we must affirm.
4
Powell, 379
U.S. at 58; Hinkson, 585 F.3d at 1262. It plainly is.
A.
The record supports the district court’s determination
that it was “presented . . . with an explanation for agency
action” that was “incongruent with what the record reveals
about the agency’s priorities.” Dep’t of Com. v. New York,
588 U.S. 752, 785 (2019).
The burden of establishing improper purpose through
“specific facts and evidence” of improper intent is generally

4
Even if the issuance of a subpoena to end gender-affirming care did not
squarely fall within the Powell examples, that does not foreclose an
improper purpose. On this point, the majority and I are on common
ground. “[A] court may recognize and proscribe novel ‘improper
purposes.’” Majority 24; LaSalle, 437 U.S. at 317 n.19 (explaining that
Powell contains “examples” of improper purposes but is not an
“exclusive statement about the meaning” of improper purpose); SEC v.
Wheeling-Pittsburgh Steel Corp., 648 F.2d 118, 124 (3d Cir. 1981) (en
banc) (“[B]ecause the Supreme Court has never confronted allegations
like the ones before us does not mean that the federal judiciary is
powerless to structure relief when necessary.”). An “unusual”
unauthorized purpose is still improper. Wheeling-Pittsburgh Steel
Corp., 648 F.2d at 125.

QUEERDOC, PLLC V. USDOJ 67
“heavy,” in no small part because DOJ investigations are
confidential. Jose, 131 F.3d at 1328 (citation and internal
quotation marks omitted); LaSalle, 437 U.S. at 316; U.S.
Dept. Just., Justice Manual § 1-7.100; id. § 1-7.400. Those
under investigation can ordinarily only speculate about an
agency’s motives, and speculation is insufficient to establish
bad faith. See, e.g., SEC v. McGoff, 647 F. 2d 185, 193–94
(D.C. Cir. 1981); Adamowicz v. United States, 531 F.3d 151,
160 (2d Cir. 2008); United States v. Am. Target Advert., Inc.,
257 F.3d 348, 355 (4th Cir. 2001). Consider the cases
invoked by the majority. In Jose, the recipient made “only a
bald assertion that he ‘feel[s] that the underlying reason’”
was improper and provided “no facts or evidence to support
this allegation.” 131 F.3d at 1328. Likewise, in Garner, the
subpoena recipients failed to make “any specific allegations
of bad faith or improper purpose.” 126 F.3d at 1146. To the
extent subpoena recipients obtain evidence of improper
purpose, it is often limited to an individual employee’s
motivation, which does not amount to institutional bad faith.
See, e.g., United States v. Markwood, 48 F.3d 969, 984 (6th
Cir. 1995). By contrast, because DOJ initiated a remarkably
public investigation, as described infra Section III.A.3, and
announced its purpose, QueerDoc presents substantial
evidence of DOJ’s “institutional posture.” LaSalle, 437 U.S.
at 316.
Specifically, the government’s (1) own statements of
purpose, (2) shifting post-hoc rationalizations, (3) deviation
from longstanding prosecutorial norms, and (4) intrusive
informational demands provide ample support for the district
court’s finding that the “specific facts and evidence” in the
record show DOJ “issued the subpoena first and searched for
a justification second.” Jose, 131 F.3d at 1328 (citation and
internal quotation marks omitted); QueerDoc, 807 F. Supp.

68 QUEERDOC, PLLC V. USDOJ
3d at 1303. When confronted with the motion to quash, the
district court properly considered the full record and
determined that QueerDoc satisfied its burden to establish
bad faith. Jose, 131 F.3d at 1328. The question on appeal is
not how we would weigh the evidence de novo, but rather,
whether the district court’s finding was clearly erroneous.
Anderson, 470 U.S. at 574.
I address each category of evidence in turn.
1. Statements of Purpose
An agency’s “self-proclaimed practice” that deviates
from the purported purpose of an investigation provides
evidence of “pretext.” Gertner, 65 F.3d at 969–70.
Remarkably, the government repeatedly announced that it
was investigating QueerDoc to end the provision of services
that facilitate gender-affirming care.
5
The district court took
the government at its word. We should have done the same.

5
Gender-affirming care includes “any single or combination of a
number of social, psychological, behavio[]ral or medical (including
hormonal treatment or surgery) interventions designed to support and
affirm an individual’s gender identity.” World Health Org., Gender
Incongruence and Transgender Health in the ICD,
https://www.who.int/standards/classifications/frequently-asked-
questions/gender-incongruence-and-transgender-health-in-the-icd
[https://perma.cc/9KV3-QQWC]. The Administration has described
gender-affirming care as care that supports the “so-called ‘transition’ of
a child from one sex to another,” and characterized such care as entailing
“chemical and surgical mutilation.” Exec. Order 14,187, 90 Fed. Reg.
8771, §§ 1–2 (Jan. 28, 2025).
This case involves a subset of gender-affirming care. Specifically,
QueerDoc is a telehealth provider that prescribes puberty blockers and
hormones to treat gender dysphoria. Puberty blockers stop the
production of sex hormones, thereby delaying puberty, and hormones
“help adolescents identified as female at birth look more masculine and

QUEERDOC, PLLC V. USDOJ 69
To be clear, at no point did the government claim that the
mere provision of gender-affirming care constituted the
relevant federal health care offense. Rather, the government
first said that it wanted to end gender-affirming care, and
then came up with possible ancillary federal health care
offenses to investigate. If gender-affirming care is not itself
a crime, and DOJ’s purpose is to end gender-affirming care,
then it must be the case that in issuing a subpoena to
QueerDoc, DOJ was motivated by more than a proper law
enforcement purpose.
On January 28, 2025, President Trump issued Executive
Order 14,187, “Protecting Children from Chemical and
Surgical Mutilation.” Exec. Order 14,187, 90 Fed. Reg.
8771, § 1 (Jan. 28, 2025). The EO accuses medical
providers of gender-affirming care of “maiming and
sterilizing” children or engaging in “mutilation,” and states
that “[t]his dangerous trend will be a stain on our Nation’s
history, and it must end.” Id. §§ 1–2. The EO directed the
Attorney General to “prioritize enforcement of protections
against female genital mutilation” and to “take appropriate
action to end . . . violations of the Food, Drug, and Cosmetic
Act by any entity that may be misleading the public about
long-term side effects of chemical and surgical mutilation.”
Id. §§ 8(a), (c). On February 3, 2025, the White House
stated that the “intended effect” of the EO was to “downsize
or eliminate” gender-affirming care. White House,
President Trump is Delivering on His Commitment to
Protect Our Kids (Feb. 3, 2025),
https://www.whitehouse.gov/releases/2025/02/president-

those identified as male at birth look more feminine.” United States v.
Skrmetti, 605 U.S. 495, 581 (2025) (Sotomayor, J., dissenting).

70 QUEERDOC, PLLC V. USDOJ
trump-is-delivering-on-his-commitment-to-protect-our-
kids/ [https://perma.cc/9MSG-M6CL].
On April 22, 2025, then-Attorney General Pamela Bondi
issued a memorandum (“Bondi Memo”), titled “Preventing
the Mutilation of American Children.” Bondi claimed a
“radical ideological agenda . . . teaches children to deny
biological reality” and described as “barbaric [the] practice
of surgically and chemically maiming and sterilizing
children.” She promised to “act decisively to protect our
children and hold accountable those who mutilate them
under the guise of care.” Accordingly, she directed the
investigation of (1) “manufacturers and distributors engaged
in misbranding by making false claims about the on- or off-
label use of puberty blockers, sex hormones, or any other
drug used to facilitate a child’s so-called ‘gender
transition,’” and (2) “false claims submitted to federal health
care programs for any non-covered services related to radical
gender experimentation.” Bondi promised that “the
Department of Justice will bring these practices [gender-
affirming care] to an end.”
On June 11, 2025, on his first day in office, Assistant
Attorney General Brett Shumate of the Civil Division issued
a memorandum reiterating the Attorney General’s promises
to “hold accountable those who mutilate” children and to
“pursue investigations” related “to radical gender
experimentation.” The Memo stated that “[t]he Civil
Division will use all available resources to prioritize
investigations of doctors, hospitals, [and] pharmaceutical
companies” that “advance the Administration’s policy
objectives,” including pursuing “violations of the Food,
Drug, and Cosmetic Act and other laws by
(1) pharmaceutical companies that manufacture drugs used
in connection with so-called gender transition and

QUEERDOC, PLLC V. USDOJ 71
(2) dealers such as online pharmacies suspected of illegally
selling such drugs.” The memorandum reiterated that DOJ
would “aggressively pursue claims under the False Claims
Act against health care providers that bill the federal
government for impermissible services.”
The same day, Assistant Attorney General Shumate
served QueerDoc with a criminal administrative subpoena
under HIPAA, 18 U.S.C. § 3486(a)(1)(A)(i)(I).
On July 8, 2025, QueerDoc filed a motion to seal the
district court’s docket. The next day, DOJ issued a public
announcement that it had “sent more than 20 subpoenas to
doctors and clinics involved in performing transgender
medical procedures on children,” and promised that
“[m]edical professionals and organizations that mutilated
children in the service of a warped ideology will be
held accountable by this Department of Justice.” U.S. Dept.
Just., Department of Justice Subpoenas Doctors and
Clinics Involved in Performing Transgender Medical
Procedures on Children (July 9, 2025),
https://www.justice.gov/opa/pr/department-justice-
subpoenas-doctors-and-clinics-involved-performing-
transgender-medical [https://perma.cc/S5YJ-QRY7].
That same day, at a Federal Trade Commission
workshop titled “The Dangers of ‘Gender-Affirming Care’
for Minors,” then-Chief of Staff Chad Mizelle stated
that DOJ’s goal was to “take down this multi-billion
dollar industry,” and that “[w]e are using all of the tools at
the Department of Justice” to do so.

Fed. Trade
Comm’n, The Dangers of “Gender-Affirming Care”
for Minors at 49 (Jul. 9, 2025),
https://www.ftc.gov/system/files/ftc_gov/pdf/FTC-The-
Dangers-of-Gender-Affirming-Care-for-Minors-

72 QUEERDOC, PLLC V. USDOJ
Transcript.pdf [https://perma.cc/47J5-VQRZ]. In response
to a participant’s statement that investigations of false
diagnosis codes might “stop [gender-affirming care] even in
blue states,” Deputy Assistant Attorney General Jordan
Campbell said DOJ was “[w]orking on it.” Id. at 29.
On July 25, 2025, the White House issued a statement
lauding that President Trump had “delivered” on his promise
to “end” gender-affirming care, and listing health systems
that stopped providing such care following his Executive
Orders. White House, President Trump Promised to End
Child Sexual Mutilation – and He Delivered (July 25, 2025),
https://www.whitehouse.gov/releases/2025/07/president-
trump-promised-to-end-child-sexual-mutilation-and-he-
delivered/ [https://perma.cc/8KK8-PXMD].
The district court properly concluded that these
statements provided strong evidence of an improper
“institutional posture.” LaSalle, 437 U.S. at 316. The
majority argues that whether statements by agency officials
can establish bad faith is a legal question subject to de novo
review. But this legal question has already been answered.
Officials’ statements are probative evidence of institutional
motive. See Vill. of Arlington Heights v. Metro. Hous. Dev.
Corp., 429 U.S. 252, 266, 268 (1977) (explaining that
evaluating motive “demands” consideration of
“circumstantial and direct evidence of intent,” including
“contemporary statements by members of the
decisionmaking body”); Gertner, 65 F.3d at 969–70 (finding
that “several public statements” by the agency contributed to
a “sufficient evidentiary” showing of bad faith); Mullin v.
Doe, 146 S. Ct. 2121, 2138–39 (2026) (applying Arlington
Heights to consider whether statements by the President and
the Secretary of Homeland Security established racial
animus). The district court correctly concluded that these

QUEERDOC, PLLC V. USDOJ 73
statements provide strong circumstantial evidence that DOJ
issued the subpoena to pressure QueerDoc to “settle a
collateral dispute”—that is, to end its provision of gender-
affirming care or shut down its business. Powell, 379 U.S.
at 58.
2. Shifting Justifications
DOJ’s shifting rationalizations support the district
court’s finding that the subpoena was not “honestly” issued
in pursuit of a federal health care investigation. LaSalle, 437
U.S. at 316; see Washington v. Garrett, 10 F.3d 1421, 1434
(9th Cir. 1993) (explaining that “different
justifications . . . suggest the possibility that . . . the official
reasons [were not] the true reason[s]”); EEOC v. Ethan
Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994) (recognizing that
a reasonable juror could find explanations “pretextual,
developed over time to counter the evidence”). The record
contradicts the majority’s claim that DOJ’s theory of liability
“has remained constant.” Majority 44.
Initially, DOJ stated only that it had initiated the
investigation pursuant to the Executive Orders and the Bondi
Memo. The Bondi Memo asserted that “manufacturers and
distributors” of medications could be engaged in
“misbranding” under the FDCA by making “false claims
about the on or off-label use” of gender affirming drugs. But
QueerDoc is neither a manufacturer nor distributor of drugs.
The Shumate Memo stated that DOJ would pursue FDCA
investigations into “pharmaceutical companies” that
manufacture hormones and puberty blockers and “dealers
such as online pharmacies” that sell such drugs. By contrast,
with respect to providers, the Shumate Memo said only that
DOJ would pursue “claims under the False Claims Act” for
those “that bill the federal government for impermissible

74 QUEERDOC, PLLC V. USDOJ
services.” But DOJ did not issue the subpoena to pursue a
False Claims Act investigation, and QueerDoc “does not
participate in federal insurance programs or submit
insurance claims.” QueerDoc, 807 F. Supp. 3d at 1298.
When QueerDoc asked if “specific concerns” prompted
DOJ’s investigation, a DOJ attorney offered only that
QueerDoc was being investigated because it was a
“prominent” provider of gender-affirming care: “[T]hat’s
the extent of it.” See Gertner, 65 F.3d at 970 (finding that a
“generic affidavit, devoid of particularization, suggests that
the [agency] never really suspected the [subpoena recipient]
of any questionable activity”). Nevertheless, DOJ attorneys
were instructed to make “frequent and extensive reports” to
“senior leadership.” That is, despite the absence of
particular information prompting the investigation, it was
apparently an agency priority.
QueerDoc filed a motion to quash the subpoena on July
8, 2025. DOJ did not file any affidavits regarding
investigatory purpose with its responsive briefing. In
September 2025, district courts in Massachusetts and
Washington quashed analogous DOJ subpoenas on
relevance and improper purpose grounds. See In re Admin.
Subpoena No. 25-1431-019, 800 F. Supp. 3d at 239; In re
Subpoena Duces Tecum No. 25-1431-016, 2025 WL
3562151, at *12–13.
6

6
At least seven courts have quashed, recommended quashal, or modified
these subpoenas. See In re Admin. Subpoena No. 25-1431-019, 800 F.
Supp. 3d at 239; In re Subpoena Duces Tecum No. 25-1431-016, 2025
WL 3562151, at *12–13; In re DOJ Admin. Subpoena No. 25-1431-030,
2026 WL 33398, at *11 (D. Colo. Jan. 5, 2026); In re Children’s Nat’l
Hosp., 2026 WL 160792, at *9 (D. Md. Jan. 21, 2026); In re Subpoena
No. 25-1431-014, 810 F. Supp. 3d 555, 580 (E.D. Pa. 2025); In re 2025

QUEERDOC, PLLC V. USDOJ 75
The government then pivoted. On September 26,
2025—two months after the close of briefing—the
government filed a declaration offering new justifications
for its investigation. The Gordus Declaration posited that
(1) any evidence of fraudulent billing could establish intent
under the FDCA (not the False Claims Act), and (2) that
QueerDoc could be liable for misbranding under the FDCA
for “caus[ing] the distribution of” an “approved drug for an
unapproved use” or for having “false and misleading”
information on its website that “may legally qualify as drug
labeling under the FDCA.”
On appeal, DOJ again tries motley legal theories on for
size. For one, DOJ avers, the QueerDoc subpoena may
instead aid in investigating potential FDCA violations by
unnamed manufacturers and distributors. Why, then, would
DOJ’s press release announce only the issuance of
subpoenas to “doctors and clinics” that “mutilated children,”
not to manufacturers or distributors—if the latter are the
ones suspected of violating the law? U.S. Dept. Just.,
Department of Justice Subpoenas Doctors and Clinics
Involved in Performing Transgender Medical Procedures on
Children (July 9, 2025). And how are children’s names,
dates of birth, social security numbers and addresses relevant
to this purpose?
Alternatively, DOJ contends, it may be investigating
purportedly fraudulent billing statements. But the FDCA
regulates “misbranding” and “adulteration.” See 21 U.S.C.

UPMC Subpoena, 2025 WL 3724705, at *3 (W.D. Pa. Dec. 24, 2025);
In re Admin. Subpoena 25 1431 032 to R.I. Hosp., 2026 WL 1392565, at
*10 (D.R.I. May 14, 2026). The “uniformity of judicial expression in
the district courts is significant and impressive.” McComb v. Hunt
Foods, Inc., 167 F.2d 905, 908 (9th Cir. 1948).

76 QUEERDOC, PLLC V. USDOJ
§§ 331(a)–(c). It does not regulate billing or coding. This
rationale provides no help to the majority.
Finally, DOJ suggests that QueerDoc itself may be liable
for misbranding under the FDCA. The government
acknowledges that the FDCA only “regulates the
development, manufacturing, and distribution of drugs.” It
“does not go further by regulating a doctor’s practice of
medicine,” which is reserved to the states. Ass’n of Am.
Physicians & Surgeons v. FDA, 13 F.4th 531, 534 (6th Cir.
2021); United States v. Skrmetti, 605 U.S. 495, 524 (2025)
(explaining that states retain “wide discretion” to regulate
“areas where there is medical and scientific uncertainty”
(citation omitted)). This includes a provider’s decision to
prescribe medication for off-label uses. See Buckman Co. v.
Plaintiffs’ Legal Comm., 531 U.S. 341, 350 (2001) (‘“[O]ff-
label’ usage . . . is an accepted and necessary corollary of the
FDA’s mission to regulate in this area without directly
interfering with the practice of medicine.”); 21 U.S.C. § 396
(“Nothing in this chapter shall be construed to limit . . . the
authority of a health care practitioner to prescribe or
administer any legally marketed device to a patient.”).
Notwithstanding these principles, DOJ argues that
QueerDoc’s webpage describing puberty blockers as
“reversible” may constitute false or misleading “labeling” of
a drug, and subject QueerDoc to liability for “misbranding”
under the FDCA. 21 U.S.C. §§ 331(a)–(b), 352(a). And the
majority adds a new proposal for the government to add to
its “labeling” theory: Perhaps webpages that provide
patients guidance for self-administering injections,
informational graphics depicting cartoon unicorns, and
“tips” to facilitate “less ouch” injections, such as purchasing
“calming aromatherapy” and “[h]olding a pet or emotional
support animal,” constitute “labeling” of a drug. QueerDoc,

QUEERDOC, PLLC V. USDOJ 77
Less Ouch! Tips for Less Painful Injections,
https://queerdoc.com/tips-for-less-painful-injections/
[https://perma.cc/6TC5-T84R]; QueerDoc, Self-Injections,
https://queerdoc.com/self-injections/
[https://perma.cc/3UTA-QKEQ]. But to constitute
“labeling” of a drug, written material must appear “upon any
[drug] or any of its containers or wrappers,” or
“accompany[]” the drug. See 21 U.S.C. § 321(m).
The theory that a health care provider’s website is
“labeling” that “accompan[ies]” a drug is not persuasive. Id.
QueerDoc’s website is not “distributed to consumers as part
of an integrated distribution program.” Alberty Food Prods.
Co. v. United States, 185 F.2d 321, 325 (9th Cir. 1950)
(concluding newspaper advertisements did not accompany a
drug). Nor does it share “a common origin” with a drug.
Kordel v. United States, 335 U.S. 345, 348 (1948). At its
core, this theory is not credible because QueerDoc’s website
relates to the provision of medical care (which is reserved to
the states), not to the commercial manufacturing or
distribution of drugs (which is covered by the FDCA).
7

*
To the majority, it does not matter that DOJ’s
investigatory targets and justifications changed after issuing

7
While a party “may not avoid an administrative subpoena on the
ground that it has a valid defense to a potential subsequent lawsuit,” that
does not “mean that under no circumstances may the court inquire into
the underlying reasons for the examination.” EEOC v. Karuk Tribe
Hous. Auth., 260 F.3d 1071, 1076–77 (9th Cir. 2001); Powell, 379 U.S.
at 58. Rather, the “specific sequence of events” preceding and following
the issuance of the subpoena, including the government’s shifting and
thin theories of liability, may provide “circumstantial . . . evidence” of
bad faith. Arlington Heights, 429 U.S. at 266–67.

78 QUEERDOC, PLLC V. USDOJ
the subpoena, because “an agency investigation is dynamic.”
Majority 44. It certainly matters. A fundamental principle
of administrative law is that courts may not uphold agency
actions based on “post hoc rationalizations,” theories
developed to “defend[] in court the agency’s acts.” FTC v.
Atl. Richfield Co., 567 F.2d 96, 100 (D.C. Cir. 1977);
Gonzalez v. Reno, 212 F.3d 1338, 1350 (11th Cir. 2000);
Burlington Truck Lines, Inc. v. United States, 371 U.S. 156,
168 (1962). The majority does just that by adopting
investigative theories first articulated in the properly stricken
Gordus Declaration—all while bafflingly claiming that the
“government’s investigatory purpose has remained
constant.” Majority 44.
Even if we could ignore this “foundational principle of
administrative law,” Michigan v. EPA, 576 U.S. 743, 758
(2015), DOJ does not claim that it has “acquire[d] new
information” that caused it to change investigatory targets,
legal theories, and justifications. Majority 44. In law, as in
life, “the simplest explanation is generally the best.” Apache
Stronghold v. United States, 101 F.4th 1036, 1082 (9th Cir.
2024) (en banc) (Bea, J., concurring in part and dissenting in
part). Here, the record suggests that after multiple courts
quashed DOJ’s subpoenas as having been issued to
intimidate providers of gender-affirming care, DOJ adopted
new post-hoc rationalizations to “counter the evidence” and
save its improper investigation. Ethan Allen, Inc., 44 F.3d
at 120.
3. Deviation from Prosecutorial Norms
DOJ’s approach to this investigation runs counter to
longstanding agency policies and norms that prioritize
confidentiality. “Departures from the normal procedural

QUEERDOC, PLLC V. USDOJ 79
sequence” provide “circumstantial . . . evidence” of bad
faith. Arlington Heights, 429 U.S. at 266–67.
The day after QueerDoc filed a motion to seal
proceedings to protect the integrity of the investigation and
the “safety of the providers associated with QueerDoc [and]
their patients,” DOJ publicly announced that it had issued
subpoenas to more than twenty providers of gender-
affirming care. U.S. Dept. Just., Department of Justice
Subpoenas Doctors and Clinics Involved in Performing
Transgender Medical Procedures on Children (July 9,
2025).
This represents a significant departure from agency
norms that prioritize confidentiality. The DOJ’s
investigative work “involves non-public, sensitive matters.”
Justice Manual, § 1-7.100. DOJ’s manual explains that it
generally “will not confirm the existence of or otherwise
comment about ongoing investigations,” or “comment on
[their] nature or progress before charges are publicly filed.”
Id. at §§ 1-7.100, 7.400. This norm makes sense. When
investigatory subjects and witnesses are put on notice of an
ongoing investigation, it becomes more difficult to obtain
the evidence necessary to identify and prosecute violations
of the law. See Brief for Former U.S. DOJ Attorneys as
Amicus Curiae 29. In addition to potentially “jeopardiz[ing]
an investigation,” publicizing an investigation also risks
“put[ting] a witness or law enforcement officer in
danger; . . . prejudic[ing] the rights of a defendant; or
unfairly damag[ing] the reputation of a person.” Justice
Manual § 1-7.100. Confidentiality thus promotes effective
enforcement of the law.
DOJ abandoned these longstanding norms in this case.
DOJ did not wait for “charges [to be] publicly filed” to

80 QUEERDOC, PLLC V. USDOJ
disclose the existence and nature of its investigation. Id. § 1-
7.400. Instead, just a month after serving a subpoena on
QueerDoc, DOJ publicly announced its investigations into
providers of gender-affirming care—and opposed
QueerDoc’s motion to seal the district court’s docket. DOJ’s
departure from confidentiality norms key to an
investigation’s success (in DOJ’s own telling) provides
circumstantial evidence that its goal was not to “honestly”
pursue potential FDCA violations. LaSalle, 437 U.S. at 316.
4. Subpoena Breadth
The subpoena’s expansive scope supports the district
court’s finding that the government acted in bad faith. See
Media Matters for Am. v. FTC, No. 25-5302, 2025 WL
2988966, at *7 (D.C. Cir. Oct. 23, 2025) (holding that the
“broad scope” of a civil investigative demand provides
“relevant evidence of pretext”). While the government’s
demand for intrusive identifying information bears little on
its purported purpose of investigating federal health care
offenses, it effectively serves the goal of intimidating
patients and providers.
The subpoena requires disclosure of thousands of
intrusive patient and employee records.
8
Requests 11 and 12
seek patient data and records for every patient prescribed

8
The subpoena ordered QueerDoc to produce fifteen categories of
documents, including “[c]omplete personnel files for each employee,
contractor, or affiliate,” “[a]ll documents . . . concerning the use
of . . . diagnosis codes,” “[a]ll communications with public or private
health care benefit programs or plans regarding” coding, “[a]ny training
materials . . . relating to billing or coding practices for gender-related
care,” “[a]ll documents relating to contracts” with manufacturers or
pharmacies of puberty blockers or hormones, and “[a]ll documents
relating to any adverse event . . . in a minor patient with regard to
gender-related care.”

QUEERDOC, PLLC V. USDOJ 81
puberty blockers or hormone therapy, including
“[d]ocuments sufficient to identify each patient.” QueerDoc
must produce patients’ “name[s], date[s] of birth, social
security number[s], address[es], and parent/guardian
information.” On appeal, the government doubles down on
its “need” for patients’ identifying information, but it is
unclear what information would not be obtainable from
anonymized records. Indeed, a district court recently found
that DOJ has agreed to anonymized data in several
jurisdictions. In re Admin. Subpoena 25 1431 032 to R.I.
Hosp., 2026 WL 1392565, at *3.
So too, the subpoena seeks identifying information on
QueerDoc’s adult patients, although DOJ claims it is only
investigating the provision of gender-affirming care to
minors. See United States v. Henry, 491 F.2d 702, 705 (6th
Cir. 1974) (finding pretext determination “buttressed by” the
subpoena’s demand of records that “could not apply” to the
stated investigatory purpose but “could be useful” for the
improper purpose).
In contrast to legitimate law enforcement, it is obvious
how DOJ’s intrusive demands “could be useful” to the
improper purpose of eliminating gender-affirming care.
Henry, 491 F.2d at 705. For one, disclosure of patients’
names and personally identifying information intimidates
current patients and deters prospective patients from seeking
care. Patients may choose to forgo care rather than risk
public intolerance, hostility, or violence. Access to gender-
affirming care “can be a question of life or death,” as
untreated gender dysphoria can cause “depression, eating
disorders, substance abuse, self-harm, and suicidality.”
9

9
The majority identifies a recent Finnish study, not briefed by the parties
and not raised by amici curiae, and suggests that its findings evince

82 QUEERDOC, PLLC V. USDOJ
Skrmetti, 605 U.S. at 581 (Sotomayor, J., dissenting) (citing
E. Coleman et al., Standards of Care for the Health of
Transgender and Gender Diverse People, Version 8, 23 Int’l
J. Transgender Health S1, S62 (2022)).
The subpoenas also chill the provision of gender-
affirming care by intimidating providers who offer such
care. The financial cost of litigation and the operational
burden of compliance with expansive production demands
may put providers out of business. See United States v.
Samuels, Kramer & Co., 712 F.2d 1342, 1347–48 (9th Cir.
1983) (requiring an evidentiary hearing on improper purpose
in light of evidence government may have issued subpoena
in part to “close [recipient’s business] down”). And the

professional disagreement with previous research finding that “gender-
affirming care improves mental health outcomes and reduces suicide risk
in transgender youth.” Majority 36 n.5; see Brief for American Academy
of Pediatrics as Amicus Curiae 8–11 (canvassing research). As a
threshold matter, it is not our role to parse the merits of quantitative
research neither raised before the district court nor briefed on appeal.
Assuming we were tasked with evaluating this study, since the study’s
publication, wide-ranging critiques have emerged about its
methodology. Among the notable critiques, a group of professors wrote
that the data “cannot be used to draw conclusions about mental health
after [gender-affirming care], nor can they be used to compare those who
accessed [gender-affirming care] and those who did not,” and requested
a reanalysis and re-review of the data based on the study’s
“misrepresentation of data, misrepresentation of findings, and
inappropriate controls.” E. Kale Edmiston et al., Concerns Regarding
Data Modelling and Interpretation in Ruuska et al., Acta Paediatrica:
Reader’s Forum 1–2 (May 30, 2026), https://doi.org/10.1111/apa.70617.
Likewise, based on the study’s alleged methodological flaws, an open
letter signed by nearly fifty academics, researchers, practitioners, and
advocates urged “prompt editorial reconsideration” of the study to
“ensure scientific soundness.” See David R. Banos et al., Letter of
Concern About Ruuska et al. From 4 April 2026, Acta Paediatrica:
Reader’s Forum 1–4 (May 22, 2026), https://doi.org/10.1111/apa.70620.

QUEERDOC, PLLC V. USDOJ 83
industry-wide threat of criminal investigation pressures
providers to stop offering such care, even if they are not yet
investigatory targets. Unsurprisingly, these threats have
proven effective at achieving the “intended effect” of
chilling gender-affirming care. President Trump is
Delivering on His Commitment to Protect Our Kids (Feb. 3,
2025). Since the Executive Orders, “more than 40 hospitals
nationwide have paused or ceased to offer some type of
gender-affirming care” to minors. Theresa Gaffney, Amid
Federal Pressure, More Hospitals Stop Gender-Affirming
Care for Minors, STAT News (Feb. 5, 2026),
https://www.statnews.com/2026/02/05/hospitals-stop-
gender-care-minors-trump-administration-pressure/
[https://perma.cc/UD9V-LBV3].
This case is no different. Dr. Crystal Beal, Chief
Executive Officer of QueerDoc, attested that “full
compliance” with the subpoena, including reviewing and
producing patient records, personnel files, and other
documents, and ensuring conformity with state privacy laws,
would “seriously threaten QueerDoc’s ability to remain in
business.” QueerDoc is a small telehealth provider. Apart
from Dr. Beal, QueerDoc has only one other employee.
Because QueerDoc does not have an information technology
department to manage document production, Dr. Beal would
have to hire a discovery vendor. QueerDoc would also have
to “invest additional resources into legal resources.” And
Dr. Beal would have to shift from “providing healthcare
services to patients” to “managing document productions.”
*
The majority responds that the subpoena’s expansive
scope does not show bad faith, because the information
sought may be relevant to DOJ’s investigation. But a

84 QUEERDOC, PLLC V. USDOJ
subpoena recipient may move to quash a subpoena either
because the information is irrelevant to the purported
investigation or because the subpoena was issued for an
improper purpose. See Crystal, 172 F.3d at 1144 (describing
the “burden” shift after “the government has established the
Powell elements”). That is, a subpoena recipient who moves
to quash a subpoena may prevail by establishing that the
information sought is irrelevant, notwithstanding the
agency’s demonstrated good faith. Or a subpoena recipient
may show that a subpoena was issued in bad faith, although
it clears the prima facie relevance bar. See Gertner, 65 F.3d
at 968–71 (affirming improper purpose determination
notwithstanding a sufficient relevance showing).
The majority similarly reasons that “fear that the costs of
compliance will force a party to shutter its business
implicates the question of undue burden, not of improper
purpose.” Majority 50–51. QueerDoc could certainly seek
to narrow the subpoena because compliance would unduly
burden its business operations. But this simply presents a
different question from whether the subpoena was issued for
the purpose of putting QueerDoc out of business—and under
our precedent, warrants a different remedy. That is, a
subpoena recipient may obtain an order narrowing a
subpoena because compliance would be unduly
burdensome, although the agency issued the subpoena in
good faith pursuit of its statutorily authorized purpose. Or a
district court may properly quash a subpoena on improper
purpose grounds after finding that the agency issued the
subpoena for the purpose of shutting down a business,
regardless of whether the subpoena in fact imposed a legally
sufficient undue burden. See Samuels, Kramer & Co., 712
F.2d at 1347–48.

QUEERDOC, PLLC V. USDOJ 85
Thus, even assuming the government carried its prima
facie burden, the district court did not err in concluding that
the subpoena’s intrusive and expansive scope supported its
bad faith finding.
* *
The district court’s finding that DOJ issued the subpoena
to chill QueerDoc’s provision of gender-affirming care is
logical, plausible, and supported by the record, which is all
that clear error review requires. Hinkson, 585 F.3d at 1262.
The majority should have ended its inquiry here.
IV.
The district court’s finding that DOJ acted for the
purpose of ending gender-affirming care was not “based on
several [legal] misapprehensions.” Majority 48. The
majority invents purported legal errors based on the
misguided view that courts are powerless to constrain
agency overreach if doing so would “intrude” on the
President’s policy priorities. This misunderstands the
relationship between the executive, judicial, and legislative
branches in the investigative subpoena context. “Subpoena
enforcement power is not limitless.” Ken Roberts Co., 276
F.3d at 586. Agencies must operate within the bounds of the
law enacted by Congress, and courts have a “duty not to
rubber-stamp” administrative subpoenas “but to adjudge
their legitimacy.” CFPB v. Accrediting Council for Indep.
Colls & Schs., 854 F.3d 683, 689 (D.C. Cir. 2017). The
district court’s decision respects this balance of powers. The
majority’s opinion undermines it.

86 QUEERDOC, PLLC V. USDOJ
A.
The checks and balances built into the § 3486 subpoena
authority constrain executive power. True, the Executive
Branch has “discretion” to prioritize “legal actions against
defendants who violate the law.” TransUnion LLC v.
Ramirez, 594 U.S. 413, 429 (2021). But the administrative
subpoena power is not a discretionary executive function; it
is a congressionally authorized power, limited by statute and
subject to judicial review that is “narrow,” but “potent.”
SEC v. Arthur Young & Co., 584 F.2d 1018, 1024 n.39 (D.C.
Cir. 1978). Where Congress has provided authority to issue
subpoenas for a particular purpose, neither the President nor
the DOJ has the authority to stray from that purpose.
First, “[t]he authority of an administrative agency to
issue subpoenas for investigatory purposes is created solely
by statute.” United States ex rel. Richards, 4 F.3d at 753
(quoting Peters, 853 F.2d at 696); LaSalle, 437 U.S. at 317
n.18. Rather than sanction “unconstrained investigative
authority,” Congress, in the context of this case, authorized
the use of subpoenas solely for the purpose of investigating
“[f]ederal health care offense[s].” EEOC v. Shell Oil Co.,
466 U.S. 54, 65 (1984); 18 U.S.C. § 3486(a)(1)(A)(i)(I).
Thus, our task is simply to determine whether the district
court’s finding that DOJ issued the subpoena for a purpose
not authorized by Congress was clearly erroneous. LaSalle,
437 U.S. at 317 n.18. Again, the district court had ample
evidence to conclude that when DOJ issued its subpoena, it
did so not for the purpose of investigating a crime, but to run
QueerDoc out of business.
In an apparent effort to avoid the clear error standard of
review for factual findings, the majority recasts the issue
before us as “what counts as an illicit motive,” a legal

QUEERDOC, PLLC V. USDOJ 87
question subject to de novo review. Clarke, 573 U.S. at 256.
But the “illicit motive[s]” at issue in this case are well-
established. Id. Because DOJ “does not enjoy inherent
authority to summon production of the private papers of
citizens” and may “exercise only that authority granted by
Congress,” the issuance of a subpoena for a purpose other
than its statutorily authorized purpose is improper. LaSalle,
437 U.S. at 317 n.18. That is, if DOJ issued the subpoena
not in “honest[]” and “good faith” investigation of a federal
health care offense, as § 3486 requires, but to “harass”
QueerDoc or to “pressure” it to “settle a collateral dispute”
(to shut down its business or end its provision of gender-
affirming care), it acted pursuant to an improper purpose. Id.
at 316, 317 n. 19; Powell, 379 U.S. at 58. The district court
thus applied the “correct legal standard.” Clarke, 573 U.S.
at 256.
Second, federal courts have a duty to ensure agencies do
not exceed their statutory authority in issuing subpoenas.
Agencies are expected to pursue “earnest and eager action”
in enforcement proceedings. United States v. Morton Salt
Co., 338 U.S. 632, 640 (1950). But “judicial review is
provided” to protect against “harsh and overzealous action”
or “mistaken or arbitrary orders.” Id.
“[W]hile the courts’ role in subpoena enforcement may
be a strictly limited one, it is neither minor nor ministerial.”
Ken Roberts Co., 276 F.3d at 587 (citation and internal
quotation marks omitted). In subpoena enforcement
proceedings, courts may review only whether the agency
satisfied its prima facie burden, and if so, whether the
subpoena recipient satisfied its burden to show the subpoena
was issued in bad faith, poses an undue burden, or is
overbroad. See Golden Valley Elec. Ass’n, 689 F.3d at 1113.
These are “narrow” inquiries; but “the court’s role . . . within

88 QUEERDOC, PLLC V. USDOJ
its confines [] is potent.” Arthur Young & Co., 584 F.2d at
1024 n.39. That is, district courts have a duty to carefully
weigh evidence suggesting an investigation is pretextual,
rather than simply accepting at face value an agency’s claim
that it acted in good faith. The district court properly
examined a “narrow” question—whether the subpoena was
issued in bad faith—and engaged in “potent” review within
its confines, examining all relevant evidence of DOJ’s intent.
Id.
Potent review of whether an agency acted in bad faith
reflects fidelity to our constitutional order. For one, the
“integrity of the judicial process” is at stake. Wheeling-
Pittsburgh Steel Corp., 648 F.2d at 125. Administrative
subpoenas are not self-enforcing. Rather, “[i]t is the court’s
process which is invoked to enforce the administrative
[subpoena] and a court may not permit its process to be
abused.” Powell, 379 U.S. at 58.
The integrity of the legislative process is also at stake.
The judiciary’s “duty to police the boundary between the
Legislature and the Executive is as critical as our duty to
respect that between the Judiciary and the Executive.” City
of Arlington v. FCC, 569 U.S. 290, 327 (2013) (Roberts,
C.J., dissenting). Where an agency exceeds its statutory
authority in issuing a subpoena, courts have a “duty not to
rubber-stamp” the agency’s demand for production of
documents, but to instead “stand guard” against “abuses of
their subpoena-enforcement processes.” Accrediting
Council, 854 F.3d at 689; Arthur Young & Co., 584 F.2d at
1024.
The majority abdicates this core judicial duty. In the
name of executive power, and based on a “fundamental
misunderstanding about the authority of the [DOJ],” the

QUEERDOC, PLLC V. USDOJ 89
majority “thwart[s]” Congress’s clear limitations on the
HIPAA subpoena power, sanctions agency abuse of court
process, and abandons our role in maintaining the separation
of powers. LaSalle, 437 U.S. at 317 n.18; Shell Oil Co., 466
U.S. at 65; see Morrison v. Olson, 487 U.S. 654, 693 (1988)
(quoting Buckley v. Valeo, 424 U.S. 1, 122 (1976)) (“[T]he
system of separated powers and checks and balances
established in the Constitution was regarded by the Framers
as ‘a self-executing safeguard against the encroachment or
aggrandizement of one branch at the expense of the other.’”);
1 B. Montesquieu, The Spirit of the Laws 161 (Thomas
Nugent transl., J. Prichard ed. 1914) (“To prevent this abuse,
it is necessary from the very nature of things that power
should be a check to power.”).
B.
The majority’s primary rejoinder is that the President’s
policy goal of ending gender-affirming care is not itself
improper. True, the President may adopt a policy position
on gender-affirming care, even if that position is
unsupported by scientific evidence.
10
But that is not the
legal question before us. That the President can voice policy
opposition to gender-affirming care does not mean that the
DOJ can weaponize its statutorily constrained subpoena
authority as a tool to put health care providers out of
business. The crux of the majority’s confusion lies here. It
uses one word to refer to two distinct ideas. As QueerDoc’s

10
“[T]he American Academy of Pediatrics, American Medical
Association, American Psychiatric Association, American
Psychological Association, and American Academy of Child Adolescent
Psychiatry all agree that hormones and puberty blockers are ‘appropriate
and medically necessary’ to treat gender dysphoria.” Skrmetti, 605 U.S.
at 582 (Sotomayor, J., dissenting) (citation omitted).

90 QUEERDOC, PLLC V. USDOJ
counsel acknowledged at oral argument, the President has a
“purpose,” which the federal courts do not sit to review. See
Oral Argument at 18:18–18:52, QueerDoc, PLLC v. U.S.
Dep’t of Just. (No. 25-7384). But the subpoena is also issued
for a “purpose,” and that purpose is subject to congressional
limitation and judicial review.
The majority claims that the President’s Article II
removal power, Trump v. Slaughter, No. 25-332,
609 U.S. ____, 2026 WL 1855612, at *6 (U.S. June 29,
2026), eliminates the “division between DOJ and the
President.” Majority 49. This odd position reveals a
“fundamental misunderstanding about the authority of the
[DOJ].” LaSalle, 437 U.S. at 317 n.18. Because the
individuals within the Executive Branch are legally distinct,
whether an executive official’s action is lawful depends on
who takes the action. For example, where an executive
agency has the power to conduct formal adjudications, the
President cannot himself legally wield that authority. Myers
v. United States, 272 U.S. 52, 135 (1926) (explaining that
notwithstanding Article II, there are duties the President
“cannot in a particular case properly influence or control”).
Or order an agency adjudicator to rule against a specific
party. Portland Audubon Soc. v. Endangered Species
Comm., 984 F.2d 1534, 1545 (9th Cir. 1993) (“[S]trongly
disagree[ing]” with the argument that the “President’s
broader policy role” permits such influence). Nor are
executive agency officials entitled to presidential immunity
for official acts. Harlow v. Fitzgerald, 457 U.S. 800, 809
(1982) (concluding it would be “untenable to hold absolute
immunity an incident of the office of every Presidential
subordinate”). In other words, the President is not an
agency, Franklin v. Massachusetts, 505 U.S. 788, 796

QUEERDOC, PLLC V. USDOJ 91
(1992), and an agency is not legally synonymous with the
presidency.
As this unbroken line of cases makes clear, under our
constitutional order, whether an action is lawful depends on
who did it, what they did, and why. In this case, it is the law
enacted by Congress—HIPAA—that dictates the legality of
DOJ’s subpoena. Clearly, Congress’s authorization of DOJ
to issue subpoenas to investigate federal health care offenses
does not permit the President to demand private citizens’
documents. As much as my colleagues wish to avoid it, the
converse is also true. That the President may lawfully voice
policy opposition to a practice does not mean the DOJ can
exceed its statutory authority and issue pretextual subpoenas
to put a company out of business. Perhaps (barring other
lawful constraints) DOJ could merely parrot the President’s
position that gender-affirming care should end, but that does
not mean that DOJ could take the separate action of issuing
subpoenas for that purpose, and thus violate the conditions
on the subpoena power that Congress prescribed.
The majority claims I “never explain[]” why DOJ may
not issue a subpoena for the purpose of ending gender-
affirming care, if the President may voice policy opposition
to such care. Majority 50. I will repeat myself for the
majority’s benefit: the law Congress enacted does not allow
DOJ to issue a subpoena in order to harass a practitioner or
to put a provider out of business, and our precedent prohibits
agencies from pursuing bad faith, pretextual investigations.
See Powell, 379 U.S. at 58. As judges, our duty is to follow
the law, not ignore it.
*
There is no question that the President has discretion to
“decide which crimes to investigate and prosecute.”

92 QUEERDOC, PLLC V. USDOJ
Majority 41 (quoting Trump v. United States, 603 U.S. 593,
620 (2024)). As a corollary, the majority reasons that any
subpoena that is consistent with a President’s policy
priorities cannot be issued in bad faith. Otherwise, such a
finding of bad faith would interfere with the President’s
ability to advance his policy priorities, direct his
subordinates, and investigate regulated industries.
This misses the mark. In isolation, an agency’s
consistency with presidential priorities is not dispositive of
whether it acted in good faith. This case is not about whether
DOJ may investigate a regulated industry if the President has
voiced policy opposition to that industry. No one contends
such an industry is immune from investigation. Nor did the
district court quash the subpoena because it was merely
consistent with the President’s priorities. Instead, the district
court quashed the subpoena because it found extensive
evidence, see supra Section III.A, satisfying QueerDoc’s
burden, that DOJ’s stated, statutorily authorized purpose for
its investigation was not in fact its “honest[]” objective.
LaSalle, 437 U.S. at 316.
Consider the majority’s hypothetical. A future President
could advocate for legislation to ban online sports betting
platforms. And the Federal Trade Commission (“FTC”)
could properly initiate investigations into suspected
anticompetitive conduct by online sports betting platforms,
which could violate the Federal Trade Commission Act
(“FTC Act”). See 15 U.S.C. § 46. But that is not what
happened in this case. Imagine instead that the FTC
announced that it would use the threat of criminal
prosecution to “end” the online sports betting industry by
putting individual firms out of business, initiating
investigations with the aim of imposing heavy legal fees, and
only coming up with possible violations of the FTC Act after

QUEERDOC, PLLC V. USDOJ 93
the fact. The former scenario reflects “the ordinary
operation of the Executive Branch.” Majority 42. The latter
evinces bad faith.
The majority’s holding to the contrary has no limiting
principle. If mere consistency with the President’s policy
priorities were to insulate subpoenas from judicial review of
whether the agency acted pretextually, the statutory
constraints imposed by Congress would be meaningless.
After all, “[t]he President sets broad policy that his
subordinates implement at increasingly specific levels.”
Majority 42. An agency could thus always invoke
consistency with presidential priorities to immunize a
subpoena from judicial review—even one brazenly issued in
bad faith. HIPAA does not license such unfettered authority.
C.
DOJ officials’ public statements put my colleagues in a
bind. To rule in favor of the government, the majority is
forced to hold that the district court erred in considering
statements by agency officials in determining whether the
subpoena was issued for a pretextual reason. But the
“dispositive question” is whether the agency acted in bad
faith—and bad faith turns on intent. LaSalle, 437 U.S. at
317 n.19. Accordingly, district courts must “inquire into the
underlying reasons” motivating an administrative subpoena.
Powell, 379 U.S. at 58; Goldman, 637 F.2d at 666.
Statements by officials about DOJ’s objectives provide
strong evidence of institutional purpose. See Arlington
Heights, 429 U.S. at 266, 268 (evaluating motive “demands”
consideration of “evidence of intent as may be available,”
including “contemporary statements by members of the
decisionmaking body”); Gertner, 65 F.3d at 969–70; Mullin,
146 S. Ct. at 2138–39. It is blackletter law that across varied

94 QUEERDOC, PLLC V. USDOJ
contexts, to “evaluat[e] purpose,” courts routinely and
“regularly take into account the statements of governmental
officials.” Freedom From Religion Found., Inc. v. Chino
Valley Unified Sch. Dist. Bd. of Educ., 896 F.3d 1132, 1149
(9th Cir. 2018).
The majority also argues that the district court
disregarded the presumption of regularity in finding DOJ
acted in bad faith. True, courts presume that government
officials “properly discharge[] their official duties.” Cruz v.
Bondi, 146 F.4th 730, 739 (9th Cir. 2025) (quoting United
States v. Chem. Found., Inc., 272 U.S. 1, 15 (1926)). But
there is “[n]o doubt” that the presumption “is subject to be
rebutted.” R.H. Stearns Co. v. United States, 291 U.S. 54,
63 (1934). That is, the presumption applies “in the absence
of clear evidence to the contrary.” Cruz, 146 F.4th at 739
(quoting Chem. Found., Inc., 272 U.S. at 14–15) (emphasis
added). As described above, QueerDoc has presented ample
evidence “to the contrary.” Id. We need not assume that
DOJ is acting in good faith to investigate crimes when it has
told us that it is acting with the intent to end an industry.
Finally, the majority suggests that the government’s
perfunctory acknowledgement of the law is sufficient to
overcome QueerDoc’s evidence of bad faith. Specifically,
the majority observes that the Executive Order states that it
“shall be implemented consistent with applicable law” and
the Bondi Memo authorizes only “appropriate
investigations.” In the majority’s view, the fact that the
government said it would follow the law should end our
inquiry.
This ipse dixit reasoning would eliminate judicial review
of whether a subpoena was issued for an improper purpose.
In practice, a statement by a government official that the

QUEERDOC, PLLC V. USDOJ 95
agency would follow the law would always defeat a motion
to quash, regardless how flagrant the evidence of pretext.
But a district court’s role is to serve as an “independent
reviewing authority,” not “a ‘rubber stamp’ for agency
demands for the production of information.” Wearly v. FTC,
616 F.2d 662, 665 (3d Cir. 1980); Markwood, 48 F.3d at 979.
I cannot join the majority in turning “potent” judicial review
of institutional bad faith into a hollow formality. Arthur
Young & Co., 584 F.2d at 1024 n.39.
V.
It is hard to imagine clearer evidence that DOJ issued the
subpoena to QueerDoc in bad faith. “We as the judiciary
should not pretend to be blind to what the American public
can easily observe for themselves.” Nat’l TPS All. v. Noem,
166 F.4th 739, 782 (9th Cir. 2026) (Mendoza, J.,
concurring); accord Dep’t of Com., 588 U.S. at 785 (“[W]e
are not required to exhibit a naiveté from which ordinary
citizens are free.” (quotation marks and citation omitted)).
The majority does just that in rejecting the district court’s
well-supported finding in favor of unfettered subpoena
power that is divorced from our precedent, unmoored from
the law Congress enacted, and a threat to the separation of
powers. I am doubtful the majority would so contort the
governing law and our precedent if this case did not promise
to impede access to gender-affirming care. Because neither
the President nor the DOJ have the authority to rewrite
§ 3486, and because judicial review is not a rubber stamp for
agency overreach, I dissent.