United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-1655

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Kerrey Buser, M.D., * 

* 

Appellant, * 

* Appeal from the United States

v. * District Court for the 

* District of Nebraska.

Richard Raymond, M.D., Chief * 

Medical Officer for the State of * 

Nebraska, Individually and in his * 

Official Capacity; Randy T. Kohl, * 

M.D., Individually and in his Official * 

Capacity; Joseph C. Scott, Jr., M.D., * 

Individually and in his Official * 

Capacity; Arthur A. Weaver, D.O., * 

Individually and in his Official * 

Capacity; Kay Kahla, Individually and * 

in her Official Capacity; John L. Reed, * 

M.D., Individually and in his Official * 

Capacity; Gordon D. Adams; * 

Susan Eilts, Individually and in her * 

Official Capacity; Deb Ford, * 

Individually and in her Official * 

Capacity; James D. Smith, Individually * 

and in his Official Capacity, *

* 

Appellees. *

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Submitted: November 13, 2006

Filed: February 7, 2007

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1

The Honorable Joseph F. Bataillon, United States District Judge for the District

of Nebraska. 

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Before RILEY, BEAM, and SMITH, Circuit Judges.

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SMITH, Circuit Judge.

Kerry B. Buser, M.D., sued members of the Nebraska Board of Medicine and

Surgery ("the Board"), Richard Raymond, M.D., Chief Medical Officer of Nebraska

("CMO"), and the Nebraska Attorney General (collectively "appellees") for civil

rights violations. Buser's suit alleged that the Board's practice of using the CMO—an

absentee judge—during physician disciplinary hearings violated his due process rights

under 42 U.S.C. § 1983. Appellees subsequently filed a motion to dismiss, asserting,

inter alia, that Dr. Buser failed to state a cause of action against Dr. Raymond under

the absolute immunity doctrine. The district court1

 granted appellees' motion to

dismiss all claims against Dr. Raymond, finding that Dr. Raymond was entitled to

absolute immunity. We affirm. 

I. Background

 The Nebraska Uniform Licensing Law contains the investigative, prosecutorial,

and disciplinary process governing all Nebraska physicians. Neb. Rev. Stat. § 71-101

et seq. The statute empowers the Board to regulate the practice of medicine and

surgery in Nebraska, including the power to review and screen complaints against

physicians and make findings and disciplinary recommendations to the Nebraska

Attorney General. Id. § 71-168.01(5). 

The Board's general administration and acts are subject to oversight by the

Department of Health and Human Services Regulation and Licensure ("the

Department"). Id. § 71-121.01. The Department may also initiate investigations

against physicians and, after completing its investigation, consult with the Board to
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receive its recommendations for submission to the Attorney General. Id. §

71-168.01(5).

The statute makes the director of the Department responsible for hearing and

deciding disciplinary complaints against physicians. Notably, the statute also

authorizes appointment of the CMO to perform the director's duties. Id. §§ 71-155,

155.01. Such duties include the authority to revoke, suspend, or place limitations on

a license. Id. § 71-150. The CMO is responsible for appointing a hearing officer to

preside over the physician's disciplinary hearing. Neb. Admin. Code, Title 184, Ch.

1, § 008.01A. As the presiding official, the hearing officer may place witnesses under

oath, issue subpoenas, rule on objections, and generally control the course of the

proceedings. Id. § 008.02A. The CMO may permit the hearing officer to recommend

findings of fact, conclusions of law, and disposition. Id. § 008.02B. After the hearing,

the CMO has the power to make findings of fact and conclusions of law. Id. § 013.01

The physician may appeal the CMO's final decision to the state district court under the

Administrative Procedures Act. Neb. Rev. Stat. § 71-159.

Dr. Buser is subject to the Nebraska Licensing Law, as he operates a surgical

medical practice in Lexington, Nebraska, and is licensed in Nebraska. Prior to October

2, 1998, the Board investigated a complaint made against Dr. Buser, containing seven

causes of action. Based upon the Board's recommendation, the Nebraska Attorney

General filed a Petition for Disciplinary Action against Dr. Buser. At the time of the

investigation, Dr. Raymond was the CMO. Dr. Buser's hearing, however, was

conducted before Hearing Officer Terry R. Schaaf. After the hearing, both Dr. Buser

and the State submitted written summaries to Dr. Raymond. Dr. Raymond, as CMO,

subsequently issued findings of fact and conclusions of law, dismissing two of the

seven causes of action, limiting Dr. Buser's license to practice medicine for one year,

and ordering Dr. Buser to pay a civil penalty of $5,000.00 within 90 days of the date

of the order. 
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Both Dr. Buser and the State appealed the decision to the District Court of

Lancaster County under the Administrative Procedures Act. The state court affirmed

Dr. Raymond's decision. Neither party took any further appeal. Dr. Buser then filed

this § 1983 action in federal district court, alleging that his due process rights were

violated by the named defendants. The district court granted appellees' motion to

dismiss for failure to state a claim, finding that Dr. Raymond was entitled to absolute

immunity. 

II. Discussion

Dr. Buser appeals the district court's grant of absolute immunity to Dr.

Raymond, arguing that Dr. Raymond, as CMO, is not entitled to absolute immunity

because (1) due process requires the presence of the CMO at physician disciplinary

hearings and (2) the disciplinary process contains inadequate safeguards, as the

CMO's sole function is to "step in at the last stage of the process and issue his findings

of fact, conclusions of law and disciplinary sanctions without ever participating in the

hearing process." 

We review de novo a district court's grant of a motion to dismiss. In re

Canadian Import Antitrust Litig., 470 F.3d 785, 788 (8th Cir. 2006). 

"[I]n a suit for damages arising from unconstitutional action, federal executive

officials exercising discretion are entitled only to the qualified immunity . . . subject

to those exceptional situations where it is demonstrated that absolute immunity is

essential for the conduct of the public business." Butz v. Economou, 438 U.S. 478, 507

(1978). Such "exceptional situations" include "situations arising when executive

department officials . . . functionally serve in capacities comparable to judges,

prosecutors and jurors." Horwitz v. State Bd. of Med. Exam'rs of State of Colo., 822

F.2d 1508, 1514 (10th Cir. 1987). Thus, officials performing quasi-judicial actions are

entitled to absolute immunity. VanHorn v. Oelschlager, 457 F.3d 844, 847 (8th Cir.

2006). 
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Whether an executive official, body, or committee is entitled to absolute

immunity "turns on a number of factors," which are: 

"(a) the need to assure that the individual can perform his [or her]

functions without harassment or intimidation; (b) the presence of

safeguards that reduce the need for private damages actions as a means

of controlling unconstitutional conduct; (c) insulation from political

influence; (d) the importance of precedent; (e) the adversary nature of the

process; and (f) the correctability of error on appeal."

Krueger v. Lyng, 4 F.3d 653, 656 (8th Cir. 1993) (quoting Brown v. Griesenauer, 970

F.2d 431, 438 (8th Cir. 1992)) (alteration in original) (holding that suspension

"hearing" process was not an adversary one because (1) petitioner "was not given an

opportunity to call witnesses of his own or to cross-examine the witnesses against

him"; instead, "the testimony received was in the form of letters from disgruntled

employees who were not present at the hearing and whose statements were not given

under oath"; (2) "there was little probability that any errors in the committee

proceeding, which limited its consideration to employee allegations against [the

petitioner], would be corrected on appeal because when the matter was heard by the

hearing examiner, he too refused to permit evidence that would have tended to

establish that [the petitioner] was discharged because of his whistle-blowing

activities"; and (3) rather than functioning as a review board, the members of the

committee acted "simply as a discharging authority"). 

Several of our sister circuits have addressed claims brought by physicians

against state boards of medical examiners. "Every court of appeals that has addressed

the issue has concluded that members of a state medical disciplinary board are entitled

to absolute quasi-judicial immunity for performing judicial or prosecutorial

functions." Ostrzenski v. Seigel, 177 F.3d 245, 249 (4th Cir. 1999) (citing O'Neal v.

Miss. Bd. of Nursing, 113 F.3d 62, 65–67 (5th Cir. 1997); Wang v. New Hampshire

Bd. of Registration in Med., 55 F.3d 698, 701 (1st Cir. 1995); Watts v. Burkhart, 978
2

In DiBlasio, the Second Circuit concluded that New York medical officials

were not entitled to absolute immunity from a radiologist's due process claims.

DiBlasio, 344 F.3d at 297–302. In that case, the New York Board for Professional

Medical Conduct assigned the Director of Medical Fraud Unit of the Office of

Medical Professional Conduct to investigate the radiologist's rate of error in detecting

cancer. Id. at 294. Following her investigation, the Director recommended that the

New York State Department of Health temporarily suspend the radiologist's license

pursuant to the summary suspension procedures. Id. The radiologist subsequently

received a letter from the Director stating that he was being investigated for

professional misconduct and that a scheduled meeting between the radiologist and the

Director was related to that investigation. Id. The letter did not advise the radiologist

of his right to be represented by counsel. Id. at 295. After the scheduled meeting, the

Commissioner of the New York State Department of Health summarily suspended the

radiologist's medical license and, through the Board, issued a Statement of Charges.

Id. Two months after the summary suspension, a hearing committee of the Office of

Medical Professional Conduct began an evaluation of whether the summary

suspension should be continued pending final resolution of the misconduct charges.

Id. It ultimately found no basis for the continued suspension of the license. Id. The

Commissioner, however, rejected the hearing committee's recommendation and

ordered the continuation of the complete suspension of the radiologist's license. Id.

The radiologist then brought suit in federal district court, alleging substantive due

process claims based on purported misconduct during the investigation and summary

suspension proceedings. Id. 

On appeal, the Second Circuit concluded that New York's summary suspension

procedure "lacks sufficient similarity to the judicial process to warrant absolute

immunity from suit for involved officials." Id. at 297. The court found that the

summary suspension procedure lacked meaningful safeguards against arbitrary

executive action because (1) "the Board's hearing committee has the power to suggest

a course of action only, while the commissioner has the final authority to summarily

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F.2d 269, 272–78 (6th Cir. 1992) (en banc); Bettencourt v. Bd. of Registration in Med.

of Commonwealth of Mass., 904 F.2d 772, 782–84 (1st Cir. 1990); Horwitz, 822 F.2d

at 1512–16)). But see DiBlasio v. Novello, 344 F.3d 292 (2d Cir. 2003) (holding that

New York medical officials were not entitled to absolute immunity from radiologist's

due process claims arising from summary suspension of medical license).2

 Even where
suspend a physician's license"; (2) "although the hearing committee must initiate

suspension proceedings, the independence of that body is severely undermined by the

commissioner's appointment and removal powers"; and (3) "the post-deprivation

hearing before the Board's hearing committee provides no real check on the

commissioner's conduct," as the commissioner may freely reject the hearing

committee's recommendation that the suspension be lifted. Id. at 299.

Additionally, the court determined that the Commissioner's role in the summary

suspension process was not "sufficiently analogous to that of a judge or prosecutor,

respectively, to warrant absolute immunity from suit." Id. at 300. While the

Commissioner possesses the ultimate authority to summarily suspend a physician's

license, the Commissioner does not issue subpoenas or regulate the course of any

hearings. Id. Instead, the Commissioner "wear[s] several hats" by being overseer of

the investigation, initiator of charges and summary proceedings, and final arbiter of

the decision. Id. This "blending of roles" "unduly risks compromising the

independence and neutrality of the commissioner's judgment." Id. Therefore, the court

held that the Commissioner was not entitled to absolute immunity. Id.

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an official is "not a Board member, and thus he is one step removed from the 'judicial'

function of the Board, he nevertheless may be entitled to absolute quasi-judicial

immunity if he is engaged in a protected [ ] function." Ostrezenski, 177 F.3d at 249.

For example, in Bettencourt, the First Circuit held that a member of the medical

board who "weighs evidence, makes factual and legal determinations, chooses

sanctions, writes opinions explaining his decisions, serves a set term . . . and can be

removed only for cause" is "functionally comparable" to a judge. Bettencourt, 904

F.2d at 783. The court also determined that the act of revoking a doctor's license "is

likely to stimulate a litigious reaction from the disappointed physician, making the

need for absolute immunity apparent." Id. Finally, the court addressed the adequacy

of procedural safeguards. Id. The court explained that, after the hearing officer issued

his decision, the board "then reviews the hearing officer's decision and issues its own

'final decision,' which also contains a statement of reasons and a determination of

factual and legal issues." Id. at 774. In making its factual determinations, the board has
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to give substantial deference to the hearing officer's credibility determinations "but is

free to revise or reject the findings of a hearing officer on conflicting evidence." Id.

The board reviews all legal issues de novo. Id. The court held that such procedures

were adequate, as (1) the physician may be represented by counsel; (2) there is a board

prosecutor; (3) the physician has access to a transcribed record; (4) the hearing officer

writes a tentative decision; (5) the regulations allow for oral and documentary

evidence and cross-examination; and (6) the Supreme Judicial Court of Massachusetts

directly reviews the board's decision. Id. at 783. 

Applying the absolute immunity factors to the present case, we conclude that

Dr. Raymond is entitled to absolute immunity. First, the need to assure that Dr.

Raymond, as CMO, can perform his functions without harassment or intimidation

weighs in favor of absolute immunity. As the First Circuit recognized in Bettencourt,

Dr. Raymond's decision to revoke or suspend a physician's license likely exposes him

to the threat of litigious parties.

Second, Dr. Raymond's entitlement to absolute immunity is not overcome by

Dr. Buser's claimed deprivation of due process rights due to the CMO's absence at the

hearing before the hearing officer. The purpose of absolute immunity is to insulate

officials performing quasi-judicial functions from liability for alleged unconstitutional

acts. See Butz, 438 U.S. at 507 ("We therefore hold that, in a suit for damages arising

from unconstitutional action, federal executive officials exercising discretion are

entitled only to the qualified immunity . . . subject to those exceptional situations

where it is demonstrated that absolute immunity is essential for the conduct of the

public business."). Thus, if adequate safeguards exist in the hearing process and the

CMO's duties are "functionally comparable" to that of a judge, such factors weigh in

favor of absolute immunity. 

We conclude that the hearing process contains adequate safeguards. Dr. Buser

was permitted to call witnesses, present evidence, testify, obtain a decision, and appeal
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to the state district court. Additionally, like the board members in Bettencourt, Dr.

Raymond's duties as CMO are "functionally comparable" to that of a judge, as the

CMO is permitted to weigh evidence, make factual determinations, and render a

decision. Just as the board members in Bettencourt were permitted to make their own

findings of fact and conclusions of law—albeit giving substantial deference to the

hearing officer's credibility determinations—Dr. Raymond, as CMO, makes his

findings of fact and conclusions of law after independently reviewing the record. 

Dr. Buser relies on DiBlasio to support his argument that the CMO is not a

judicial officer because all the CMO does is "step in at the last stage of the process and

issue findings of fact, conclusions of law and disciplinary sanctions without ever

participating in the hearing process." However, the DiBlasio case is distinguishable

on four grounds. One, in DiBlasio, after the hearing committee made its evaluation

and recommendation, the Commissioner could summarily suspend the physician's

license absent meaningful review. Here, after the hearing officer holds the hearing, the

CMO independently reviews the record to make findings of fact and conclusions of

law before disposition. Two, unlike in DiBlasio where the Commissioner had the

power to appoint and remove the members of the hearing committee, there is no

indication in the record that once the CMO appoints the hearing officer, he has the

power to remove the hearing officer. Three, while the court in DiBlasio concluded that

there was no meaningful opportunity for review, in the present case, any decision

made by the CMO is appealable under the Administrative Procedures Act. Four, the

Commissioner in DiBlasio "wore several hats" by overseeing the investigation,

initiating the charges and summary proceedings, and acting as a final arbiter; in

contrast, the CMO plays no part in initiating the investigation and instead possesses

the judicial powers of administering oaths and issuing subpoenas for witness

testimony and document production. Neb. Rev. Stat. § 75-155(1). Therefore, DiBlasio

is inapposite to the instant case. 
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Third, as to the CMO's insulation from political influence, although the CMO

is appointed by the governor, reports to the governor, serves full time at the pleasure

of the governor, and is subject to confirmation by a majority vote of the legislature,

we have never held that this factor is determinative. We have previously granted

absolute immunity to officials who have been appointed by the governor. See Dunham

v. Wadley, 195 F.3d 1007, 1010–11 (8th Cir. 1999) (stating that members of the

Arkansas Veterinary Medical Examining Board were appointed by the governor for

five-year terms); VanHorn, 457 F.3d 844, 847 (8th Cir. 2006) (stating that members

of the Nebraska State Racing Commission were appointed by the governor and

confirmed by the legislature). 

Fourth, regarding the importance of precedent, because no evidence exists in

the record as to whether the CMO relies on precedent in rendering his decision, this

factor neither weighs in favor nor against granting absolute immunity. 

Fifth, considering the adversary nature of the process, Dr. Buser conceded in

his second amended complaint that the administrative hearing is an adversarial

process, stating that "the administrative hearing process . . . by law, is an adversarial

process. . . ." 

Finally, an erroneous decision by the CMO is correctable on appeal, as the

Administrative Procedures Act states that "[b]oth parties shall have the right of appeal

and the appeal shall be in accordance with the Administrative Procedures Act." Neb.

Rev. Stat. § 71-159. The physician may appeal the CMO's decision to the state district

court in the county where the action takes place. Id. § 84-917. 

Because a majority of the absolute immunity factors weigh in favor of granting

Dr. Raymond absolute immunity, we hold that the district court did not err in

dismissing Dr. Buser's § 1983 action based upon absolute immunity. 
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III. Conclusion

Accordingly, we affirm the judgment of the district court. 

BEAM, Circuit Judge, concurring.

I concur in the opinion of the court, but write separately to express my concern

over the Nebraska licensing procedures at issue in this very close case. As the Second

Circuit noted in DiBlasio v. Novello, 344 F.3d 292 (2d Cir. 2003), and as discussed

in footnote 2, ante at 6-7, a state medical official may be denied absolute immunity if

his or her role is too dissimilar to that of an official in a judicial proceeding. In my

view, the structure of the Nebraska medical license revocation procedure comes

dangerously close to the New York procedure struck down in DiBlasio. 

I stress this because of the limited amount of review available to litigants in the

Nebraska system. The appeal to the state district court, taken under the

Administrative Procedures Act and much relied upon by the State as a procedural

safeguard, is an extremely limited re-examination based on the agency record. See

Neb. Rev. Stat. § 84-917. I think Nebraska should carefully consider how it carries

out its medical licensing revocation procedure, without undue reliance on the narrow

review available in state district court, to ensure that the actions of Nebraska's CMO

are well within the protections of absolute immunity and that all litigants are afforded

ample due process. In this regard, it would appear to me to be more constitutionally

sound for the hearing officer, who sees and hears the witnesses, views their demeanor,

and is better able to judge their credibility, to make the necessary findings of fact,

subject to a record review by the CMO.

For the reasons stated in the court's opinion, I concur. 

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