               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT

                       _____________________

                            Nos. 92-5702
                                 92-5750
                         (Summary Calendar)
                       _____________________


          KATHERINE LAVERNE GILBREATH, ET AL.,
                              Plaintiffs,

          KATHERINE LAVERNE GILBREATH,
                              Plaintiff-Appellant,

          v.

          GUADALUPE HOSPITAL FOUNDATION
          INC., ET AL.,
                              Defendants-Appellees,
                              and

          UNITED STATES MERIT SYSTEMS
          PROTECTION BOARD
                              Defendant-Intervenor-Appellee.

                       ____________________


          U.S. MERIT SYSTEMS PROTECTION BOARD,
                              Plaintiff-Appellee,

          v.

          DEBORAH DILL, ETC., ET AL.,
                              Defendants,

          KATHERINE LAVERNE GILBREATH,
                              Defendant-Appellant.
_________________________________________________________________

          Appeals from the United States District Court
                for the Western District of Texas
                    SA 02 CA 31 & SA 92 CV 52
_________________________________________________________________
                         August 20, 1993

Before KING, HIGGINBOTHAM and BARKSDALE, Circuit Judges.
PER CURIAM:*

     Katherine Gilbreath filed an action in Texas state court

seeking to enjoin the enforcement of subpoenas issued to the

defendant hospitals by an administrative judge on behalf of the

Merit Systems Protection Board (MSPB) pursuant 5 U.S.C. §

1204(b)(2)(A).     When the state court entered an injunction, the

MSPB intervened and removed the action to the United States

District Court for the Western District of Texas.     The MSPB also

filed a separate action in the district court to enforce the

subpoenas.     After all parties in the removed case consented to

trial before a magistrate judge, Gilbreath moved for remand and

for summary judgment.     The magistrate denied both motions and

entered a judgment vacating the injunction and ordering the

hospitals to comply with the subpoenas.     In the enforcement

action, the district court also entered a judgment ordering

hospital officials to comply with the subpoenas.     In this

consolidated appeal, Gilbreath challenges both judgments.

Finding no error on the part of the magistrate judge or the

district court, we affirm.

                                  I.

     On December 30, 1990, Katherine Gilbreath and her son, Van,

were treated for gunshot wounds at Baptist Memorial Hospital and


     *
      Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.

                                   2
Guadalupe Valley Hospital (the Hospitals).      Local newspapers

reported that Gilbreath's husband, Vance, had shot his wife and

son during a domestic disturbance.      Vance Gilbreath was arrested

and subsequently indicted on two counts of attempted murder.       The

charges ultimately were dismissed.

     In April 1991, Vance Gilbreath's employer, the Defense

Logistics Agency (DLA), an agency of the federal government,

removed him from his position as a Supervisory Subsistence

Management Specialist.   The DLA cited the alleged shootings as

one of the grounds for Mr. Gilbreath's removal.1      In particular,

the DLA submitted that there was extensive publicity about the

shootings in local newspapers and that the incident had caused

the employees he supervised to lose confidence in him and had

undermined his effectiveness in dealing with the public,

contractors, vendors, and other business people with whom he had

to interact to accomplish his duties.

     Mr. Gilbreath appealed his dismissal to the MSPB,2 an

independent, quasi-judicial federal agency that is responsible,

among other things, for adjudicating appeals by federal employees

from adverse personnel actions.       See 5 U.S.C. §§ 1204(a), 7513(d)

and 7701 (1988 & Supp. III 1991).      At the request of the DLA, the

administrative judge who was to conduct the MSPB hearing issued

     1
        The DLA also charged Mr. Gilbreath with openly having an
affair with an agency employee whom he supervised, with apparent
conflicts of interest with vendors, and with failing to cooperate
with his supervisor and investigative authorities.
     2
        Vance H. Gilbreath v. Defense Logistics Agency, MSPB
Docket No. DA0752910719I1.

                                  3
subpoenas duces tecum directing the Hospitals to produce medical

records relating to the treatment of Katherine and Van Gilbreath

on the night of alleged shootings.       The subpoenas were issued

pursuant to 5 U.S.C. § 1204(b)(2)(A)(Supp. III 1991), which

provides that any administrative law judge appointed by the MSPB

"may, with respect to any individual . . . issue subpoenas

requiring the attendance and presentation of testimony of any

such individual, and the production of documentary or other

evidence from any place in the United States . . . ."

     On the day before the MSPB hearing, Gilbreath and her son

filed an action in Texas state court, seeking to enjoin the

enforcement of the MSPB subpoenas.       The Gilbreaths argued that

the hospital records sought by the MSPB were confidential patient

communications and, as such, were protected under Texas law by

the physician-patient privilege.       The Texas court granted a

temporary restraining order, and, shortly thereafter, the

Gilbreaths and the Hospitals filed an agreed order prohibiting

the release of the records.   The state court entered a permanent

injunction on October 28, 1991.

     At the October 22 hearing, the DLA moved to enforce the

subpoenas, as required under MSPB regulations.       See 5 C.F.R. §

1201.85(a).   On November 25, the administrative law judge granted

the motion and referred the matter to the MSPB's General Counsel

for enforcement action.   See id.      The MSPB, which had not been

made a party to the Texas state-court proceeding, then requested




                                   4
a copy of the documents relating to the state-court injunction.

The MSPB received the requested documents by fax on December 9.

     On January 7, 1992, the MSPB intervened in the state-court

proceeding and moved to dissolve the injunction on the ground

that it was invalid because the MSPB, as issuer of the subpoenas,

was an indispensable party.    The following day, the MSPB filed a

notice and petition for removal under 28 U.S.C. § 1441.   In its

petition, the MSPB asserted that the district court had original

jurisdiction over the matter pursuant to 28 U.S.C. § 1331 and 5

U.S.C. § 1204(c).   No motion to remand the action was filed

within the thirty-day period set forth in 28 U.S.C. § 1446(c),

and, after each of the parties consented to proceed before a

magistrate judge, the district court referred the removed action

to a magistrate in accordance with 28 U.S.C. § 636(c).    On July

7, 1992, however, Katherine Gilbreath filed a motion to remand

the removed action on the ground that the district court lacked

subject matter jurisdiction.   According to Gilbreath, "[the]

action did not arise under Federal law but rather under the laws

of the State of Texas."

     In the mean time, on January 16, the MSPB had filed a

separate enforcement action in the district court pursuant to 5

U.S.C. § 1204(c), naming Katherine and Van Gilbreath3 and the

hospital employees named in the subpoenas as respondents.    The


     3
        Although the MSPB sought to enforce only the subpoenas
issued to the Hospitals, the Gilbreaths were named to protect
"their ability to assert their interest in the subpoenaed
records."

                                  5
Gilbreaths answered, asserting that the medical documents sought

by the subpoenas were not relevant to the MSPB proceedings and

that they were privileged under Rule 501 of the Federal Rules of

Evidence.   The hospital employees also answered, asserting that

they were under court order not to release the records.    The MSPB

also filed a motion to consolidate the proceedings, which was

denied because the Gilbreaths did not consent to proceed before a

magistrate in the enforcement action.   The district court then

referred the enforcement action to the magistrate for a report

and recommendation pursuant to 28 U.S.C. § 636(b)(1).

      On July 30, 1992, the magistrate issued an order for the

respondents to show cause why the subpoenas should not be

enforced.   The magistrate also ordered the parties to file any

papers in opposition to the enforcement petition by August 13,

and any dispositive motions along with proposed findings of fact

and conclusions of law in both the removed action and the

enforcement action by September 21.   On August 24, Katherine

Gilbreath filed summary judgment motions in both actions.    In the

removed action, she asserted that the MSPB was "improperly"

attempting to assist the DLA to secure evidence against Vance

Gilbreath because the board could have "pursued the case" in

state court, but instead elected to remove the action.    In the

enforcement action, Gilbreath argued that the medical records

sought by the subpoenas were irrelevant to the MSPB proceedings,

that they were privileged under Rule 501, and that disclosure of




                                 6
the information would violate her rights under the Privacy Act of

1974.

     On October 9, 1992, the magistrate issued an order setting

forth findings of fact and conclusions of law with respect to the

removed action.   The magistrate concluded that the enforceability

of the MSPB subpoenas was a question of federal law, that the

subpoenas were issued for a lawful purpose, that the MSPB was

within its authority in issuing the subpoenas, and that the

information sought was relevant to a matter before the board.

The magistrate also concluded that any physician-patient

privilege recognized under Texas law did not apply to the MSPB

subpoenas, which had been issued under federal statutory

authority, and that the Privacy Act did not prevent disclosure of

the records.   Accordingly, the magistrate denied the pending

remand and summary judgment motions, vacated the injunction, and

ordered the Hospitals to comply with the subpoenas.   The

magistrate entered final judgment to that effect in a separate

document.   Katherine Gilbreath then filed a timely notice of

appeal (appeal no. 92-5702).

     In the enforcement action, the magistrate set forth the same

findings and conclusions in its report and recommendation to the

district court.   However, the magistrate recommended, rather that

ordered, that the pending remand and summary judgment motions be

denied, that the injunction be vacated, and that the respondents

be ordered to comply with the subpoenas.   Katherine Gilbreath

objected to the magistrate's report, and, after a de novo review,


                                 7
the district court adopted the report except for the

recommendations regarding the motion for remand, which did not

apply to the enforcement action.       On November 17, 1992, the

district court entered a final judgment denying Gilbreath's

motion for summary judgment and ordering the respondents to

comply with the subpoenas.   Gilbreath again filed a timely notice

of appeal (appeal no. 92-5750).

     In orders dated December 23 and 28, 1992, the district court

stayed its own judgment and the judgment entered by the

magistrate pending our resolution of these appeals.       On January

12, 1993, we granted the MSPB's motion to consolidate appeal no.

92-5702 and appeal no. 92-5750 for disposition by this court.

                                  II.

     Having untangled the procedural web leading to these

appeals, we now address the merits.       Proceeding on appeal pro se,

Gilbreath argues that the original state-court action was not

properly removed because the district court, and thus the

magistrate judge, lacked subject matter jurisdiction.       She also

asserts that the judgment entered by the magistrate went beyond

the scope of the issues presented to the magistrate.       With

respect to the enforcement action, Gilbreath argues that the

district court lacked subject matter jurisdiction and that the

court erred in enforcing the subpoenas because the MSPB was

merely on a "fishing expedition."       We conclude that these

arguments have no merit.




                                   8
                                A.

     Gilbreath first argues that the action she and her son filed

in state court was not properly removed because the district

court lacked subject matter jurisdiction.   Specifically, she

asserts that, in filing the state-court action, she and her son

"invoked a state law for the purpose of preventing the defendant

hospitals from releasing, disclosing or disseminating [their]

medical records."   Thus, Gilbreath argues, "[t]here was no way

the federal court could have obtained original jurisdiction to

enforce a state law against defendant hospitals who were and are

Texas Corporations."4   We disagree.

     Claims asserted in state court, no matter how they are

characterized by the plaintiff, are removable to federal court

where the claims are "`necessarily federal in character by virtue

of the clearly manifested intent of Congress.'"   Brown v.

Southwestern Bell Telephone Co., 901 F.2d 1250, 1254 (5th Cir.

1990) (quoting Metropolitan Life Ins. Co. v. Taylor, 481 U.S.

343, 350 (1988)).   In filing the state-court action, the

Gilbreaths challenged the enforceability of subpoenas issued by

the MSPB, a federal agency, to facilitate its disposition of

Vance Gilbreath's appeal from an adverse personnel action by the

DLA, also a federal agency.   Federal civil service law, as set

     4
        We note, as did Gilbreath in her brief, that, by failing
to move for remand within the thirty-day period prescribed in §
1446, Gilbreath waived any procedural defect in the removal
action. See Jones v. Petty-Ray Geophysical Geosource, Inc., 954
F.2d 1061, 1063 (5th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct.
193 (1992). However, a waiver of defects does not waive the
fundamental requirement of subject matter jurisdiction. Id.

                                 9
forth in Title 5 of the United States Code, governs every aspect

of that administrative proceeding.      See Rollins v. Marsh, 937

F.2d 134, 139-40 (5th Cir. 1991) (civil service law provides the

exclusive procedures for settling work-related disputes between

federal civil-service employees and the federal government and

preempts any state-law remedies).      Moreover, the subpoenas

challenged by the Gilbreaths were issued under the authority of a

federal statute.    See 5 U.S.C. § 1204(b)(2)(A) (Supp. III 1991).

The same statute expressly confers jurisdiction upon the district

court to enforce the subpoenas.     See id. at (c).   The Gilbreaths

therefore could have, indeed should have, filed their action

challenging the enforceability of the MSPB subpoenas in federal

district court.    Consequently, the action was properly removed to

the district court.    See Jones v. Petty-Ray Geophysical

Geosource, Inc., 954 F.2d 1061, 1063 (5th Cir.) (when a plaintiff

challenges removal on jurisdictional grounds, the issue is

whether the district court would have had jurisdiction over the

case had it originally been filed in federal court), cert.

denied, ___ U.S. ___, 113 S.Ct. 193 (1992).

     Gilbreath also argues that the judgment entered by the

magistrate went beyond the scope of the issues properly before

the magistrate.    Specifically, she contends that the only issue

before the magistrate was whether the action was properly removed

to federal court.   Again, we disagree.

     Gilbreath and her son filed a state-court action challenging

the enforceability of the MSPB subpoenas.      After the state court


                                  10
granted an injunction, the MSPB intervened, moved to vacate the

injunction, and then removed the action to federal court.     All

parties, including Gilbreath, consented to have the magistrate

judge "conduct any and all proceedings in the case, including the

trial, and order the entry of judgment."     The magistrate was

therefore acting within his authority to fully dispose of the

action on its merits, which necessarily entailed not only

deciding the removal issue but also deciding whether the

injunction should stand and whether the subpoenas should be

enforced.

                                   B.

      With respect to the enforcement action, Gilbreath again

asserts that the district court lacked subject matter

jurisdiction.    As noted, supra, the same federal statute that

authorizes the MSPB to issue subpoenas expressly provides that

the board may seek enforcement of the subpoenas in the district

court.   See 5 U.S.C. § 1204(c).    Gilbreath's jurisdictional

argument therefore must fail.

      Gilbreath also makes a somewhat unfocused argument that the

district court erred in ordering the enforcement of the

subpoenas.   The only substantive argument she presents, however,

is that the subpoenas should not be enforced because the MSPB is

merely on a "fishing expedition in an attempt to justify the

removal action taken [by the DLA against] Vance H. Gilbreath in

March 1991."    Needless to say, this argument fails to persuade

us.


                                   11
      As the district correctly observed, when reviewing an

administrative subpoena, a district court plays a "strictly

limited" role.     Sandsend Financial Consultants v. Federal Home

Loan Bank Bd., 878 F.2d 875, 879 (5th Cir. 1989).    The court's

inquiry is limited to two questions: (1) whether the

investigation is for a proper purpose and (2) whether the

documents the agency seeks are relevant to the investigation.

Id.   Here, the district court found that the subpoenas in

question meet the enforcement criteria.    Gilbreath has offered

nothing to persuade us that the district court reached the wrong

conclusion.

      The district court also correctly held that Gilbreath cannot

block the release of her medical records by invoking the

physician-patient privilege recognized under Texas law.    This is

a federal case in which the MSPB is seeking to enforce subpoenas

issued under federal statutory authority.    Gilbreath's right to

assert a privilege is therefore dictated by federal law.      United

States v. Moore, 970 F.2d 48, 49-50 (5th Cir. 1992); see also

FED.R.EVID. 501.   This court has previously concluded that there

is no physician-patient privilege under federal law.     See Moore,

970 F.2d at 50 (citing cases).

      Finally, we note that Gilbreath's assertion that the release

of her medical records will constitute a violation of the Privacy

Act of 1974 (the Act) is unfounded.    The respondent Hospitals are

not covered by the Act because they are not "agencies" of the

federal government within the meaning of the Act.     See 5 U.S.C. §


                                  12
552(f).    Moreover, the Act expressly authorizes disclosure of

information "pursuant to the order of a court of competent

jurisdiction."    See 5 U.S.C. § 552a(b)(11).

                                III.

     For the foregoing reasons, we AFFIRM the judgments of the

magistrate judge (appeal no. 92-5702) and the district court

(appeal no. 92-5750), and we VACATE the stay of those judgments

imposed by the district court pending our disposition of the

appeals.




                                 13
