## United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 06-1655

___________ 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. *

___________ Submitted: November 13, 2006 Filed: February 7, 2007

___________1 The Honorable Joseph F. Bataillon, United States District Judge for the District of Nebraska.

-2- Before RILEY, BEAM, and SMITH, Circuit Judges.

___________ 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 Gene ral (collectively "appellees") for civil rights violations. Buser's suit alleged thatthe Board's practice of using the CMO—an absentee judge—during physician disciplinary h earings violated his due process rights under 42 U.S.C. § 1983. Appellees subsequently filed a moti on to dismiss, asserting, inter alia , that Dr. Buser failed to state a cau se of action against Dr. Raymond under the absolute immunity doctrine. The district court 1 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 cont ains the investigative, prosecutorial, and disciplinary process governing all Nebraska physicians. Neb. Rev. Stat. § 71-101 et seq . The statute empowers the Board to re gulate 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 Serv ices Regulation and Licensure ("the Department"). Id . § 71-121.01. The Department may also initiate investigations against physicians and, after completing its investigation, consu lt with the Board to-3- 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 agains t 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 h earing. Neb. Admin. Code, Title 184, Ch. 1, § 008.01A. As the presiding official, th e 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 deci sion 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 Di sciplinary Action against Dr. Buser. At the time of the investigation, Dr. Raymond was the CM O. 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, di smissing two of the seven causes of action, limiting Dr. Buser's li cense 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.-4- Both Dr. Buser and the State appealed the decision to the District Court of Lancaster County under the Administrative Pro cedures 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 dueprocess rights were violated by the named defe ndants. The district court granted appellees' motion to dismiss for failure to state a claim, fi nding 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 CM O, is not entitled to absolute immunity because (1) due process requires the pres ence 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 la st 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 onl y 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" incl ude "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).-5- 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 c onduct; (c) insulation from political influence; (d) the importance of precedent; (e) the a dversary 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 onebecause (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 inthe 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 probab ility that any errors in the committee proceeding, which limited its considerati on 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 w ould have tended to establish that [the petitioner] was disc harged 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 ci rcuits 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, 9782 In DiBlasio , the Second Circuit concluded th at 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 te mporarily suspend the radiologist's license pursuant to the summary suspension procedures. Id. The radiologist subsequently received a letter from the Director stati ng 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 th e Board, issued a St atement of Charges. Id . Two months after the summary suspensi on, a hearing committee of the Office of Medical Professional Conduct began an evaluation of whether the summary suspension should be continued pending fi nal resolution of the misconduct charges. Id . It ultimately found no basis for the continued suspension of the license. Id . The Commissioner, however, rejected the h earing 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 misconduc t during the investigation and summary suspension proceedings. Id

. On appeal, the Second Circuit conclude d 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 m eaningful safeguards against arbitrary executive action because (1) "the Board's hearing committee has the power to suggest a course of action only, while the commissi oner has the final authority to summarily

-6- F.2d 269, 272–78 (6th Cir. 1992) (en banc); Bettencourt v. Bd. ofRegistration 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 entitle d to absolute immunity from radiologist's due process claims arising from summary suspension of medical license). 2Even wheresuspend 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 thatthe Commissioner's role in the summary suspension process was not "sufficiently an alogous 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

.
-7- an official is "not a Board member, and thus he is one st ep 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 th at a member of the medical board who "weighs evidence, makes factual and legal determinations, chooses sanctions, writes opinions explaining his decisi ons, 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 thatthe 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, af ter the hearing officer issued his decision, the board "then reviews the h earing officer's decision and issues its own 'final decision,' which also contains a st atement of reasons and a determination of factual and legal issues." Id . at 774. In making its factual determinations, the board has-8- to give substantial deference to the heari ng 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 th at such procedures were adequate, as (1) the phys ician 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 regul ations allow for oral and documentary evidence and cross-examination; and (6) th e 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 suspe nd 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 pro cess rights due to the CMO's absence at the hearing before the hearing officer. The purpos e 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 th at, in a suit for damages arising from unconstitutional action, federal executiv e 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 ad equate 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 c ontains adequate safeguards. Dr. Buser was permitted to call witnesses, present evid ence, testify, obtain a decision, and appeal-9- 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, makefactual determinations, and render a decision. Just as th e 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 "s tep in at the last st age 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 coul d 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 CM O appoints the hearing officer, he has the power to remove the hearing offi cer. 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 initiati ng 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.-10- Third, as to the CMO's insulation fro m political influence, although the CMO is appointed by the governor, reports to th e governor, serves full time at the pleasure of the governor, and is subjectto confirmation by a majority vote of the legislature, we have never held that this factor is determinative. We havepreviously 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 pr ecedent, 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 h earing is an adversarial process, stating that "the administrative h earing process . . . by law, is an adversarial process. . . ."

Finally, an erroneous decision by the CM O is correctable on appeal, as the Administrative Procedures Act states that "[b] oth parties shall havethe right of appeal and the appeal shall be in accordance withthe 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 ab solute immunity factors weigh in favor of granting Dr. Raymond absolute immunity, we hold th at the district court did not err in dismissing Dr. Buser's § 1983 action based upon absolute immunity.-11- 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 issu e 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, anteat 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 me dical 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-exami nation 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 proce dure, 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 h ears 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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