Kerrey Buser, M.D. v. Richard Raymond etc.

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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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

1
The Honorable Joseph F. Bataillon, United States District Judge for the District
of Nebraska.

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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

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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

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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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

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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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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