United States Court of Appeals,

Fifth Circuit.

No. 89–3869.

UNITED STATES of America, and Eugene Nepveaux, Revenue Officer of Internal Revenue,

Plaintiffs–Appellees,

v.

Thomas A. MOORE, M.D., Defendant–Appellant.

Aug. 28, 1992.

Appeals from the United States District Court For the Eastern District of Louisiana.

Before WISDOM, DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM:

In this case we are asked to determine whether a "physician (psychother a pist)-patient

privilege" protects in f

ormation that the Internal Revenue Service is attempting to obtain from the

defend ant/appellant, Dr. Thom as A. Moore. Dr. Moore contends that the di stri ct court erred by

enforcing the IRS summons in this case. We hold that there is no privilege protecting the information

sought by the IRS. We affirm.

I.

The appellant, Dr. Moore, is a practicing psychiatrist in Houma, Louisiana. Dr. Moore did

not file federal income tax returns for the years 1977 through 1987 and has made no payments of his

1988 tax liabilit y. As a result, Dr. Mo o re is indebted to the IRS for unpaid taxes, interest, and

penalties totaling more than $1,000,000.

In 1989 Eugene Nepveaux, the IRS agent assigned to collect that delinquent amount from Dr.

Moore, issued a summons requesting that Dr. Moore pro duce his Accounts Receivable records

indicating the name of each patient, the amount owed by each patient, and the insurance company or

other indemnifier of each patient. Dr. Moore appeared befo re Agent Nepveaux, but refused to

produce the requested documents on the grounds that to do so would constitute a violation of thedoctor-patient privilege under Louisiana law.

The United States of America and Agent Nepveaux instituted this suit by filing in the district

court a petiti on to enforce the sum m ons. The m

atter was referred to a m agi strate. Dr. Moore,

appearing pro se, argued before the magistrate that the information sought was protect ed by the

doctor-patient privilege. The magistrate ordered an in camera inspection of the documents.

After Dr. Moore obtained counsel, he requested that the magistrate's order for an in camera

inspection be considered an alternative rule nisi that Dr. Moore produce his records or show cause

why he should not be required to do so. This request was granted by a second magistrate to whom

the case had been reassigned.

At the hearing, Dr. Moore again refused to produce the requested documents, contending that

the doctor-patient privilege would b e vio lat ed even by an in camera inspection of the requested

documents. The magistrate, after hearing argument and taking t he matter under advisement,

recommended that the summons be enforced. The district court agreed and ordered Dr. Moore to

comply with the summons.

On June 6, 1990, the day before oral argument in this Court, Dr. Moore filed a voluntary

bankruptcy petition under Chapter 11 of the Bankruptcy Code. All proceedings in this matter were

st ayed by t his Court pursuant to 11 U.S.C. § 362. The bankruptcy proceedings have now been

dismissed. Accordingly, we reach the merits of this appeal.

II.

Dr. Moore contends that Louisiana law recognizes a doctor-patient privilege controlling the1 There are two statutes in Louisiana establishing a doctor-patient privilege: La.Rev.Stat.Ann.

§ 13:3734 (West 1991) and La.Rev.Stat.Ann. § 15:476 (West 1992).

2 The statutory authority under which the IRS may issue summonses is contained in 26 U.S.C.

§ 7602. The Supreme Court has announced the standards that the IRS must meet in order to

obtain enforcement of a summons. United States v. Pow ell, 379 U.S. 48, 85 S.Ct. 248, 13

L.Ed.2d 112 (1964). The magistrate found that the IRS had met the Powell requirements, and

Dr. Moore does not challenge this finding on appeal.

3 United States v. Harper, 450 F.2d 1032 (5th Cir.1971), cited w ith approval in United States

v. Meagher, 531 F.2d 752, 753 (5th Cir.), cert. denied, 429 U.S. 853, 97 S.Ct. 146, 50 L.Ed.2d

128 (1976) and United States v. Burzynski Cancer Research Institute, 819 F.2d 1301 (5th Cir.),

reh'g denied en banc, 829 F.2d 1124 (5th Cir.1987), cert. denied sub nom., Wolin v. United

States, 484 U.S. 1065, 108 S.Ct. 1026, 98 L.Ed.2d 990 (1988).

4 Ford v. United States, 618 F.2d 357, 361 (5th Cir.1980). outcom e of this case. 1 He argues that Rule 501 of the Federal Rules of Evidence requires the district

court to apply Louisiana law in this case. Rule 501 provides in pertinent part that

the privilege of a witness, person, government, State, or political subdivision thereof shall be

governed by the principles of the common law as they may be interpreted by the courts of the

United States in the lig ht o f reason and experience. However, in civil actions and

proceedings, with respect to an element of a claim or defense as to which State law supplies

the rule of decision, the privilege of a wit ness, person, government, State, or political

subdivision thereof shall be determined in accordance with State law.

Dr. Moore relies on the second clause of Rule 501 to support his position. This case, however, is not

one "as to which State law supplies the rule of decision". This is a federal case in which the IRS is

seeking to enforce a summons issued under federal statutory a uthority

. 2 Louisiana law does not

control.

Dr. Moore's alternative argument is that this circuit adopt a doctor-patient privilege. This

Court has previously considered this question and concluded that there is no doctor-patient privilege

under federal law. 3 "As a panel of this Court, we are without power to overrule a decision of another

panel. That task falls solely to the full Court sitting en banc. " 4 We hold, therefore, that there is no

federal doctor-patient privilege protecting the information sought by the summons in this case.

Furthermore, even if this Court were to adopt a doctor-patient privilege, it is unclear whether5 In re Zuniga, 714 F.2d 632 (6th Cir.), cert. denied, 464 U.S. 983, 104 S.Ct. 426, 78 L.Ed.2d

361 (1983).

6 John Doe v. Diamond, 964 F.2d 1325 (2d Cir.1992).

7 Zuniga, 714 F.2d at 640.

8 See also John Doe v. Diamond, 964 F.2d at 1328 (2d Cir.1992) ("the privilege amounts only

to a requirement that a court give consideration to a witness's privacy interests as an important

factor to be weighed in the balance in considering the admissibility of psychiatric histories or

diagnoses").

9 Cf. United States v. Barrett, 837 F.2d 1341, 1351 (5th Cir.1988) (en banc), cert. denied, 492

U.S. 926, 109 S.Ct. 3264, 106 L.Ed.2d 609 (1989) ("in a summons enforcement proceeding the

only issue that the district court can decide is whether to enforce the summons. The court cannot

conditionally enforce the summons"). the information sought by the summons would be protected. The Court of Appeals for the Sixth

Circuit was the first circuit court to adopt such a privilege, 5 and the Second Circuit recently

recognized this privilege as well. 6 In the Sixth Circuit case the information sought in this case would

not be within the scope of the privilege. In Z uniga the Sixth

Circuit considered the questi on of

whether the identities of a psychotherapist's patients were within t he scope of the privilege and

concluded that, on the facts of that case, "the identity of a patient or the fact and time of his treatment

does not fall within the scope of the psychotherapist-patient privilege." 7 Thus, even were this Circuit

t o adopt a psychotherapist-patient privilege, the information sought by the summons in this case

would fall outside the perimeter of its protection. 8

Finally, Dr. Moore requests that he be given the opportunity to inform each of his patients

that if they continue to owe him money or to utilize his services then he must reveal their identity to

the IRS. The United States does not address this issue in its brief before this Court, nor did the

United States address this issue in t he district court. Dr. Moore is, of course, free to notify his

patients if he so desires. Nevertheless, we decline the opportunity to impose a not ification

requirement as a pre-requisite to enforcement of the summons. 9

The order of the district court enforcing the summons is AFFIRMED.