United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 99-1524

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Sandra K. Dunham, D.V.M., *

*

Appellant, *

* Appeal from the United States

v. * District Court for the Eastern

* District of Arkansas.

George Wadley, D.V.M.; *

Wingfield Martin; *

Everett I. Rogers, D.V.M.; *

G. C. Blair, D.V.M.; *

James W. Waymack, D.V.M.; *

Donald I. Mayfield, D.V.M.; *

Gary F. Strickland, D.V.M.; and *

Sherry Glover, *

*

Appellees. *

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Submitted: September 16, 1999

Filed: November 10, 1999

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Before BOWMAN, LAY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________
1The Honorable James M. Moody, United States District Judge for the Eastern

District of Arkansas.

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MORRIS SHEPPARD ARNOLD, Circuit Judge.

Sandra Dunham, a veterinarian, appeals the decision by the district court1 to

grant the defendants' motion for summary judgment on her claims under 42 U.S.C.

§ 1983 and Arkansas law. The defendants were members of the Arkansas Veterinary

Medical Examining Board at all times in question. 

Dr. Dunham contends that a licensing exemption contained at the relevant time

in the Arkansas statutes, see Ark. Code Ann. § 17-99-307(b)(8) (1994) (repealed

1995), gave her a constitutionally protected property interest and that the defendants

deprived her of it without due process. The district court held that although

Dr. Dunham qualified for the exemption, such a qualification did not establish a

property interest that was protected under state law. The district court further held that

the board members were absolutely immune from suit by virtue of the fact that their

proceedings were quasi-judicial in nature. We affirm the district court's judgment.

I.

The defendants participated in meetings of the board during which they

considered accusations that Dr. Dunham was practicing veterinary medicine without

a license in violation of Ark. Code Ann.§ 17-101-312(a). Dr. Dunham was not licensed

to practice veterinary medicine in Arkansas, but was in the process of obtaining an

Educational Commission for Foreign Veterinary Graduates (ECFVG) certificate. One

subsection of the Arkansas statutes at the relevant time provided that "[t]his chapter

shall not be construed to prohibit ... [a] graduate of a foreign college of veterinary

medicine who is in the process of obtaining an [ECFVG] certificate from performing

duties or actions under the direction and supervision of a licensed veterinarian." See

Ark. Code Ann. § 17-99-307(b)(8) (1994).
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The board interpreted this licensing exemption for ECFVG candidates as

requiring the supervising licensed veterinarian to be physically present at the clinic

where the ECFVG candidate was practicing. The board had received information that

Dr. Dunham was practicing at two clinics without a licensed veterinarian on site and

therefore sent "cease and desist" letters to Dr. Dunham and her two employers. Each

employer then terminated her employment. Dr. Dunham thus claims that the letters to

the clinics caused her employment to be terminated. (The board subsequently

petitioned in Arkansas state court to enjoin Dr. Dunham from any future unauthorized

practice of veterinary medicine.) 

Dr. Dunham contests the board's conclusion that she was outside the scope of

the statutory exemption and was therefore unlawfully practicing veterinary medicine.

The board's letters invited Dr. Dunham to call the board's office if she had any

questions, but she testified that she did not do so because she "became aware that for

[her] to have attempted to discuss [her] situation would have been futile." She argues

that the board should have given her the opportunity to demonstrate that her actions fell

within the exemption and that the defendants' failure to give her this opportunity

deprived her of due process.

II.

To establish a claim under 42 U.S.C. § 1983, Dr. Dunham must show a

deprivation of a right, privilege, or immunity secured by the Constitution or the laws

of the United States. See Montano v. Hedgepeth, 120 F.3d 844, 848 (8th Cir. 1997).

Dr. Dunham asserts that the defendants deprived her of property without procedural

due process of law and thus in violation of the fourteenth amendment.

The analysis of a procedural due process claim must begin with an examination

of the interest allegedly violated. See Riley v. St. Louis County, 153 F.3d 627, 630

(8th Cir. 1998), cert. denied, 119 S. Ct. 1113 (1999). Property interests such as the one

claimed by Dr. Dunham derive from existing rules that stem from an independent
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source, such as state law. See Board of Regents v. Roth, 408 U.S. 564, 577 (1972);

see also Singleton v. Cecil, 176 F.3d 419, 421-22 (8th Cir. 1999) (en banc), petition

for cert. filed, No. 99-376 (U.S. Aug. 31, 1999). Dr. Dunham maintains that Ark. Code

Ann. § 17-99-307(b)(8) (1994) provided her with a property interest in practicing

veterinary medicine that was protected by the fourteenth amendment. We disagree.

The Supreme Court has said that "[t]he hallmark of property ... is an individual

entitlement grounded in state law, which cannot be removed except 'for cause.' " Logan

v. Zimmerman Brush Co., 455 U.S. 422, 430 (1982). We have held that a state statute

or policy can create a constitutionally protected property interest, first, when it contains

particularized substantive standards that guide a decision maker and, second, when it

limits the decision maker's discretion by using mandatory language (both requirements

are necessary). See Jennings v. Lombardi, 70 F.3d 994, 995-96 (8th Cir. 1995).

Statutes or policies that are only procedural, or that grant to a decision maker

discretionary authority in their implementation, in contrast, do not create protected

property interests. Id. at 996. 

The statute provides that "[n]o person may practice veterinary medicine in this

state who is not a licensed veterinarian or the holder of a valid temporary permit issued

by the board." See Ark. Code Ann. § 17-101-307(a). The subsection that listed

exemptions to that requirement at the relevant time stated that "[t]his chapter shall not

be construed to prohibit ... [a] graduate of a foreign college of veterinary medicine who

is in the process of obtaining an [ECFVG] certificate from performing duties or actions

under the direction and supervision of a licensed veterinarian." That subsection,

§ 17-99-307(b)(8) (1994), along with eight other subsections, therefore provided a

statutory exemption from the general prohibition on the unlicensed practice of

veterinary medicine.

We believe, however, that the statute's exemption did not create a protectable

interest, because it did not entitle Dr. Dunham to do anything; she was merely
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exempted from a licensing requirement. The statute did not change Dr. Dunham's legal

status in any way: If the licensing requirement had not been enacted, she would have

been entitled to practice veterinary medicine without a license, which is precisely the

right that she is presently claiming. Her exemption from the licensing requirement

therefore created no constitutionally protected property interest. See Roth, 408 U.S.

at 576, 578, and Jennings, 70 F.3d at 996.

III.

It may well be that Dr. Dunham had a liberty interest in practicing veterinary

medicine, a right created not by the statute on which she relies but one that the

fourteenth amendment nevertheless protects. See generally Conn v. Gabbert, 119 S.

Ct. 1292, 1295-96 (1999); see also Roth, 408 U.S. at 571-72. Although Dr. Dunham

makes no such argument here, we do not want to be understood as saying that such a

liberty interest does not exist or that we would have rejected the argument that such an

interest did exist if Dr. Dunham had made it. But even if Dr. Dunham did have a

constitutionally protected liberty to be a veterinarian, we believe that her claim would

have failed because the defendants are entitled to absolute immunity.

Persons who perform quasi-judicial functions are entitled to absolute immunity.

See Butz v. Economou, 438 U.S. 478, 512-16 (1978); see also Kwoun v. Southeast

Missouri Professional Standards Review Organization, 811 F.2d 401, 407 (8th Cir.

1987). The Supreme Court has held that absolute immunity is appropriate when an

official's functions are similar to those involved in the judicial process, see Butz, 438

U.S. at 513, an official's actions are likely to result in lawsuits for damages by

disappointed parties, see id. at 515, and sufficient safeguards exist in the regulatory

framework to control unconstitutional conduct, see id. at 512. See also Ostrzenski v.

Seigel, 177 F.3d 245, 249 (4th Cir. 1999), and Romano v. Bible, 169 F.3d 1182, 1187

(9th Cir. 1999).
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The board here consisted of five members who were appointed by the governor

for five-year terms. See Ark. Code Ann. § 17-101-201(b). Four of the members were

licensed veterinarians, see § 17-101-201(b)(1), and one of the members was a

non-licensed public citizen, see § 17-101-201(b)(2). The membership terms are

arranged so that one expires every year. In cases involving complaints of unauthorized

practice, the statute empowers the board to conduct investigations, hold hearings,

administer oaths, receive evidence, issue subpoenas, make factual and legal

determinations, and enter orders consistent with the findings. See § 17-101-203(4),

§ 17-101-203(10). The statute also empowers the board to bring proceedings in state

court to enforce the statutory provisions. See § 17-101-203(11).

The board discussed Dr. Dunham's situation during two scheduled meetings,

maintained detailed minutes of each meeting, and considered investigative reports that

were prepared in her case. Following the meetings, the board issued orders in the form

of letters sent to Dr. Dunham and two of her employers informing them of the board's

conclusion that Dr. Dunham was engaging in the practice of veterinary medicine

without a proper license, and warning that the employers themselves would be subject

to criminal punishment if they did not "cease and desist" from their employment of her.

Dr. Dunham in fact agrees that the letters were not mere requests, but, rather,

"threatened criminal prosecution and future adverse administrative action should she

fail to comply." 

The letter to Dr. Dunham's first employer concluded that "[i]t is necessary ... for

you to cease and desist from employing any person to practice veterinary medicine in

this state who is not duly authorized [to do so]" (emphasis supplied). The board also

subpoenaed Dr. Dunham to attend a hearing at which her second employer agreed to

terminate her employment. 
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To the extent that the board weighed evidence, made factual determinations,

determined sanctions, and issued written decisions, we conclude that these duties are

functionally comparable to the duties performed by courts. See Romano, 169 F.3d at

1187. Cf. Cleavinger v. Saxner, 474 U.S. 193, 202-06 (1985). We further conclude

that the board's actions are likely to result in lawsuits for damages by disappointed

parties such as Dr. Dunham, that sufficient safeguards exist in the Arkansas regulatory

framework to control unconstitutional conduct, and that defendants are therefore

protected by quasi-judicial immunity. See Butz, 438 U.S. at 512-16; see also O'Neal

v. Mississippi Board of Nursing, 113 F.3d 62, 65-66 (5th Cir. 1997).

While some of the board's functions, such as bringing an enforcement proceeding

in Arkansas state court, might have been prosecutorial in nature, we note that courts

have also granted absolute immunity to actors who perform such prosecutorial

functions. See, e.g., Wang v. New Hampshire Board of Registration in Medicine, 55

F.3d 698, 701 (1st Cir. 1995), and Horwitz v. State Board of Medical Examiners, 822

F.2d 1508, 1515 (10th Cir. 1987); see also Mishler v. Clift, 1999 WL 692011, at #7,

#15-#21 (9th Cir. Sept. 8, 1999). 

We agree with the reasoning of these cases, and we note, furthermore, that

Dr. Dunham produced no evidence showing that the defendants acted in non-judicial

or non-prosecutorial capacities, or that they acted in "complete absence of all

jurisdiction," Duty v. City of Springdale, Arkansas, 42 F.3d 460, 462 (8th Cir. 1994)

(per curiam). See generally Martin v. Hendren, 127 F.3d 720, 721 (8th Cir. 1997).

Since the defendants' actions were functionally comparable to those of judges and

prosecutors, they are entitled to absolute immunity. 

IV.

For the foregoing reasons, we affirm the judgment of the district court.
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A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.