Kevin Buckwalter v. State of Nevada Board

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KEVIN RAY BUCKWALTER, 

Plaintiff-Appellant,

No. 11-15742

v.

D.C. No.

STATE OF NEVADA BOARD OF

MEDICAL EXAMINERS; SOHAIL U.  2:10-cv-02034-KJD

ORDER AND

ANJUM; JAVAID ANWAR; S. DANIEL

AMENDED

MCBRIDE; VAN HEFFNER; EDWARD

OPINION

COUSINEAU,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Nevada

Kent J. Dawson, District Judge, Presiding

Argued and Submitted

February 16, 2012—San Francisco, California

Filed April 26, 2012

Amended June 8, 2012

Before: Betty B. Fletcher, John T. Noonan, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Paez

6539

6542 BUCKWALTER v. NEVADA BD OF MED. EXAMINERS

COUNSEL

Jacob Hafter and Michael Naethe, Law Office of Jacob L.

Hafter & Associates, Las Vegas, Nevada, for the plaintiff-

appellant.

Frank Gilmore and Michael E. Sullivan, Robison Belaustegui

Sharp & Low, Reno, Nevada, for the defendants-appellees.

ORDER

The opinion filed on April 26, 2012 is amended as follows.

The phrase <Edward Cousineau, a Board Member>, appear-

ing on page 4447 of the Slip Opinion, is replaced with the fol-

lowing text: <Edward Cousineau, the Board’s Executive

Director>.

An amended opinion is filed concurrently with this order.

Judge Paez has voted to deny the petition for rehearing en

banc. Judge B. Fletcher and Judge Noonan so recommend.

The full court has been advised of the petition for rehearing

en banc and no judge has requested a vote on whether to

rehear the matter en banc. Fed. R. App. P. 35.

BUCKWALTER v. NEVADA BD OF MED. EXAMINERS 6543

The petition for rehearing en banc is DENIED. No further

petitions for rehearing or rehearing en banc may be filed in

response to the amended opinion.

OPINION

PAEZ, Circuit Judge:

Kevin Ray Buckwalter, M.D., appeals the district court’s

dismissal of claims he brought against the members of the

Nevada State Board of Medical Examiners (“Board Mem-

bers”), in their individual capacities, under 42 U.S.C. § 1983.

Buckwalter alleged that the Board Members deprived him of

his constitutional rights when, in an ex parte emergency pro-

ceeding, they summarily suspended his authority to prescribe

medication. The issues presented for review are (1) whether

the Board Members are entitled to absolute immunity from

liability for the exercise of their summary authority, and (2)

whether Younger abstention proscribes the federal courts from

hearing Buckwalter’s case while the state proceedings are

pending.

We hold that the Board Members are absolutely immune

from Buckwalter’s claims for money damages, and that Youn-

ger abstention bars Buckwalter’s claims for equitable relief.

We therefore affirm.

I. Background

Dr. Buckwalter has been a licensed physician in Nevada

since 1997. In 2006, the Nevada State Board of Medical

Examiners (“the Board”) began to investigate citizen com-

plaints that Dr. Buckwalter was overprescribing narcotic anal-

gesics. The Board’s Investigative Committee ordered a peer

review of the results of the investigation to determine whether

Buckwalter’s conduct as a physician was consistent with pre-

6544 BUCKWALTER v. NEVADA BD OF MED. EXAMINERS

vailing professional standards. Two peer reviewers concluded

that in several instances, Buckwalter’s conduct fell below the

minimum standard of care.

Edward Cousineau, the Board’s Executive Director, filed a

formal administrative complaint with the Board. The com-

plaint charged Buckwalter with three counts of wrongdoing

and alleged that he was an imminent threat to the health and

safety of his patients. On that basis, Cousineau asked the

Board to summarily suspend Buckwalter’s authority to pre-

scribe or administer controlled substances.

On November 12, 2008, the Board convened an emergency

telephone meeting to review the complaint and summary sus-

pension request. Buckwalter was not notified of the charges

against him or offered an opportunity to participate in the

meeting. In the meeting, the Board Members concluded that

there was sufficient evidence that Buckwalter posed a danger

to public welfare to justify the summary suspension of his

authority to prescribe, administer, and dispense controlled

substances in Nevada. The Board Members also scheduled a

full hearing on the administrative complaint for March 18,

2009, as well as a prehearing conference for early February.

The Board immediately notified Buckwalter of the summary

suspension and the hearing schedule.

In the months following the summary suspension, the par-

ties worked to reach a settlement. On the eve of the hearing

date, Buckwalter and the Board entered into a joint stipulation

to vacate the hearing in anticipation of a finalized settlement.

Ultimately, however, the full Board voted to reject the pro-

posed settlement. Buckwalter did not withdraw from the stip-

ulation or demand that a hearing be reset, opting instead to

attempt to reach a new settlement that would pass muster with

the Board.

The parties never reached a mutually satisfactory agree-

ment, and in November 2010 Buckwalter commenced this

BUCKWALTER v. NEVADA BD OF MED. EXAMINERS 6545

action under 42 U.S.C. § 1983 in the District of Nevada,

charging the Board and its members with depriving him of

constitutional due process. The complaint alleged that the

Board Members denied Buckwalter due process first by sum-

marily suspending his prescribing privileges, and second by

failing to promptly conduct a postdeprivation hearing follow-

ing the summary suspension.

The district court dismissed all of Buckwalter’s claims,

holding that they were barred by absolute immunity and, in

the alternative, that Younger abstention precluded a federal

court from hearing the case. Buckwalter timely appealed.

II. Standard of Review

“Whether a public official is entitled to absolute immunity

is a question of law that is reviewed de novo.” Miller v.

Davis, 521 F.3d 1142, 1145 (9th Cir. 2008) (quoting Gold-

stein v. City of Long Beach, 481 F.3d 1170, 1172 (9th Cir.

2007)). “We review de novo the district court’s decision to

abstain under the Younger doctrine.” Potrero Hills Landfill,

Inc. v. Cnty. of Solano, 657 F.3d 876, 881 (9th Cir. 2011).

We also review de novo a district court’s order dismissing

a complaint under Federal Rule of Civil Procedure 12(b)(6).

See Cervantes v. United States, 330 F.3d 1186, 1187 (9th Cir.

2003). We assume that Buckwalter’s allegations of fact are

true and analyze them in the light most favorable to his

claims. See id.

III. Discussion

A. Absolute immunity.

[1] State and federal executive officials1 are absolutely

1

Buckwalter’s suit also names the Nevada State Board of Medical

Examiners as a defendant. The Eleventh Amendment proscribes § 1983

6546 BUCKWALTER v. NEVADA BD OF MED. EXAMINERS

immune from § 1983 suits if they perform “ ‘special func-

tions’ which, because of their similarity to functions that

would have been immune when Congress enacted § 1983,

deserve absolute protection from damages liability.” Buckley

v. Fitzsimmons, 509 U.S. 259, 268-69 (1993) (quoting Butz v.

Economou, 438 U.S. 478, 508 (1978)).

[2] It is the “nature of the function performed, not the iden-

tity of the actor who performed it,” that determines whether

an official is cloaked by absolute immunity. Id. at 269. The

paradigmatic functions giving rise to absolute immunity are

those of judges and prosecutors. See Tamas v. Dep’t of Soc.

& Health Servs., 630 F.3d 833, 841-42 (9th Cir. 2010) (quot-

ing Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th

Cir. 2004)). Absolute immunity is also accorded to officials

of government agencies “performing certain functions analo-

gous to those of a prosecutor” or a judge. Butz, 438 U.S. at

515.

To determine whether a particular state officer’s role is

“functionally comparable” to that of a judge, we consider six

nonexclusive factors, decocted from Butz, that indicate a judi-

cial function:

“(a) the need to assure that the individual can per-

form his functions without harassment or intimida-

tion; (b) the presence of safeguards that reduce the

need for private damages actions as a means of con-

trolling 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.”

claims against the Board itself, whether for damages or injunctive relief.

See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102 (1984).

Hence, the only issue in this appeal is the liability of the Board Members

in their individual capacities.

BUCKWALTER v. NEVADA BD OF MED. EXAMINERS 6547

Cleavinger v. Saxner, 474 U.S. 193, 202 (1985) (citing Butz,

438 U.S. at 512). If, upon applying these “Butz factors,” we

determine that an official was functioning in a judicial or

quasi-judicial capacity when he undertook the act giving rise

to the § 1983 suit, then absolute immunity protects him from

liability. Id. An official cannot be subjected to responsibility

in a civil action, “however erroneous the act may have been,

and however injurious in its consequences it may have proved

to the plaintiff.” Id. at 199-200 (quoting Bradley v. Fisher, 80

U.S. 335, 347 (1872)).

[3] We have previously held that members of state medical

boards are “functionally comparable to judges” and thus “en-

titled to absolute immunity for their quasi-judicial acts.” Mis-

hler v. Clift, 191 F.3d 998, 1007 (9th Cir. 1999). But that does

not settle this case: the protection of absolute immunity

reaches “only those actions that are judicial or closely associ-

ated with the judicial process.” Id. (quoting Buckley, 509 U.S.

at 273). And Buckwalter contends that two acts by the Board

Members were nonjudicial and therefore outside the ambit of

absolute immunity: (1) their summary suspension of his pre-

scribing privileges and (2) their failure to provide him a

prompt postdeprivation hearing. We consider each act in turn.

1. The summary suspension.

In Mishler, we held that absolute immunity applies to “acts

occurring during the disciplinary hearing process.” Id. at

1008. Buckwalter argues that when the Board Members exer-

cise their emergency summary suspension authority, they

should not enjoy the same immunity that they do when they

conduct formal disciplinary hearings.

[4] Determining whether Mishler’s rationale extends to a

prehearing summary suspension requires us briefly to review

the operation of the two Nevada statutes that define the

Board’s disciplinary authority, as those statutes appeared in

2008: Chapter 630 of the Nevada Revised Statutes, and the

6548 BUCKWALTER v. NEVADA BD OF MED. EXAMINERS

Nevada Administrative Procedure Act, Nevada Revised Stat-

utes § 233B.2

Chapter 630 specifies that once the Board receives a com-

plaint about a physician, an investigative committee reviews

it to determine whether is has a reasonable basis. See Nev.

Rev. Stat. § 630.311. If the investigation substantiates the

complaint, the Board may bring formal charges against the

physician and set a hearing date. Id. § 630.339. Physicians

facing discipline must receive notice of the charges, the hear-

ing date, and any possible sanctions; they are also entitled to

representation by counsel and the right to present evidence on

any relevant issue. See id.; id. § 233B.121.

Section 127 of the Nevada Administrative Procedure Act

empowers the Board to summarily suspend a medical license

if “the agency finds that public health, safety or welfare

imperatively require emergency action, and incorporates a

finding to that effect in its order.” Id. § 233B.127. Following

a summary suspension, however, a formal administrative

hearing “must be promptly instituted and determined.”3 Id.

The defendants in Mishler—also members of the Nevada

State Board of Medical Examiners—did not summarily sus-

pend the plaintiff’s license; they revoked it after an adminis-

trative hearing. See 191 F.3d at 1001. We concluded that five

of the six Butz factors militated in favor of absolutely immu-

2

Unless we indicate otherwise, subsequent citations refer to the 2008

versions of these statutes.

3

In 2009, the legislature amended the statute to require the Board to ini-

tiate postdeprivation hearings within 45 days:

Proceedings relating to the order of summary suspension must be

instituted and determined within 45 days after the date of the

order unless the agency and the licensee mutually agree in writ-

ing to a longer period.

Nev. Rev. Stat. § 233B.127(3) (West 2011).

BUCKWALTER v. NEVADA BD OF MED. EXAMINERS 6549

nizing the board members from liability for that action. Id. at

1005-07.

First, we noted that an agency whose raison d’etre is to dis-

cipline medical professionals is likely to provoke frequent liti-

gation. See id. at 1005. Given the vital public-welfare interests

at stake, the court concluded that there was a “ ‘strong need’

to make certain that Board Members [could] perform these

disciplinary functions without the threat of harassment or

intimidation.” Id.

Second, we opined that it was “difficult to dispute” that

adequate procedural safeguards trammeled the Board Mem-

bers’ authority. Id. The “comprehensive umbrella of statutes”

governing the Board’s conduct created procedural safeguards

akin to those available under federal administrative law. Id. at

1005-06; see also Butz, 438 U.S. at 514 (“[T]he Administra-

tive Procedure Act contains a number of provisions designed

to guarantee the independence of hearing examiners. . . . In

light of these safeguards, we think that the risk of an unconsti-

tutional act by one presiding at an agency hearing is clearly

outweighed by the importance of preserving the independent

judgment of these men and women.”).

Reviewing the third factor—the Board Members’ insulation

from political influence—we concluded that the Board Mem-

bers were sufficiently independent because they were

appointed by the governor and removable only for good

cause. Id. at 1007.

The fourth Butz factor, the importance of precedent, was

the only one that we felt did not weigh in favor of absolute

immunity. See id. at 1007 (“It is unclear from the record to

what extent the Nevada Board relies on precedent in making

its disciplinary decisions.”). The fifth and sixth factors, how-

ever, buttressed the case that the Board Members were judi-

cial homologues when performing their disciplinary

functions:

6550 BUCKWALTER v. NEVADA BD OF MED. EXAMINERS

[I]t is clear that the disciplinary process is adversary

in nature and that errors made by the Board are cor-

rectable on appeal. Physicians are entitled to repre-

sentation by counsel and may present evidence at a

formal disciplinary hearing. The decision of the

Board must be in writing and contain the Board’s

findings and any sanctions. Judicial review of the

Nevada Board’s decision is available.

Id. (internal citations omitted).

Viewing the six factors as a totality, we held that the Board

Members were functionally comparable to judges, and that

adjudicating license-revocation hearings was a quasi-judicial

act for which they were absolutely immune from liability. Id.

[5] The calculus is obviously somewhat different in the

context of emergency summary suspensions. In Nevada, sum-

mary suspension proceedings entail substantially fewer proce-

dural protections for physicians: they are nonadversarial (and

often ex parte), they employ an indeterminate burden of

proof, and they are not subject to the various procedural stric-

tures that govern formal disciplinary hearings. And although

the Board is required to institute a formal hearing after a sum-

mary suspension, Nevada law only requires that it be

“promptly instituted”—a vague directive that raises the possi-

bility of coercive delays.4 Nev. Rev. Stat. § 233B.127.

Indeed, Buckwalter’s own experience demonstrates the par-

simony of the procedural safeguards built into the summary

suspension procedure. He received no notice of the emer-

4

As we noted supra at note 3, Nevada has since strengthened the proce-

dural protections afforded to physicians in summary suspension proceed-

ings by adopting a bright-line requirement that hearings be instituted

within 45 days of the entry of a summary suspension order. See Nev. Rev.

Stat. § 233B.127(3) (West 2011). Nonetheless, we consider whether the

Board Members were entitled to absolute immunity given the dispensation

in effect at the time Buckwalter’s privileges were suspended.

BUCKWALTER v. NEVADA BD OF MED. EXAMINERS 6551

gency ex parte telephone conference in which his prescribing

privileges were suspended. He had no opportunity to contest

the charge that he was a danger to the public before the Board

Members curtailed his professional authority. And the revoca-

tion hearing date the Board scheduled was to have taken place

more than four months after the summary suspension. The

Board Members may have considered a four-month wait rea-

sonable. Buckwalter, whose livelihood was at stake, presum-

ably did not.

[6] In spite of these procedural deficiencies, we are con-

vinced that the Board Members’ summary suspension power

is a judicial function. The Mishler court’s application of the

Butz factors to the Board Members’ disciplinary hearing

authority largely applies to their summary suspension author-

ity. First, the Board Members’ interest in performing their

functions free from harassment is at its apex when a physician

poses a serious threat to public safety. See Mishler, 191 F.3d

at 1005 (“In view of the public interest of ensuring quality

health care, there is a strong need to make certain that Board

Members can perform these disciplinary functions without the

threat of harassment or intimidation.” (internal quotation

marks omitted)). Abrogating absolute immunity for summary

suspensions could make Board Members hesitant to act

quickly and decisively to protect the public.

[7] Second, though summary suspension proceedings lack

the procedural safeguards of formal disciplinary hearings,

state law provides that whenever the Board Members exercise

their summary suspension power, a formal hearing ineluctably

follows. The Board Members’ temporary emergency judg-

ment is thus necessarily tested in the crucible of an adminis-

trative hearing with a full complement of procedural

safeguards. Had Buckwalter opted to go forward with the

disciplinary hearing instead of stipulating to postpone it, he

would have received precisely the due process that the physi-

cian in Mishler did. The same logic extends to the fifth Butz

factor, the adversary character of the proceeding. Summary

6552 BUCKWALTER v. NEVADA BD OF MED. EXAMINERS

suspensions are effectively adversary because they are subject

to mandatory postdeprivation review.

Buckwalter argues that the safeguard of a mandatory post-

deprivation hearing is inadequate, because the requirement

that the hearing be “promptly instituted and determined” is

too vague to provide meaningful due process. Nev. Rev. Stat.

§ 233B.127. There is no indication, however, that the Board

exercised its implicit discretion to interpret the term “prompt-

ly” in an abusive manner in Buckwalter’s case. Cf. Cassim v.

Bowen, 824 F.2d 791, 798 (9th Cir. 1987) (“[W]e are unwill-

ing to invalidate a statute because it might, but need not, be

applied in an unconstitutional manner.”) (quotation marks

omitted). In the emergency suspension meeting, the Board

Members set dates for both a formal hearing and a prehearing

conference and immediately informed Buckwalter of the

schedule. Buckwalter did not complain at the time that the

Board Members were being dilatory. Four months is not swift

process, but neither is it unreasonably slow. See id. at 799

(postdeprivation hearing delay of four or five months is suffi-

ciently prompt to provide due process). We are persuaded that

§ 233B.127 is a sufficient restraint on improper use of the

Board’s summary powers.

The third factor is the Board Members’ insulation from

political influence. In Mishler, we concluded that “the struc-

ture of the Nevada Board and the procedural requirements of

their decisionmaking process show that the Board Members

are sufficiently insulated from political influence.” 191 F.3d

at 1007. Buckwalter argues that the “real world of Nevada

politics” belies that judgment. He alleges that the Board

Members pursued Buckwalter’s case and refused to settle it to

burnish the Board’s image in the wake of a public scandal

involving the reuse of medical supplies at an outpatient

endoscopy center.

Judicial independence is a structural characteristic, not an

empirical one. The question is whether the conditions of an

BUCKWALTER v. NEVADA BD OF MED. EXAMINERS 6553

official’s employment tend to promote independent judgment,

not whether a particular decision was affected by the official’s

cognizance of current events. See Cleavinger, 474 U.S. at

203-04 (noting that members of a prison disciplinary commit-

tee are not independent because they are “direct subordinates

of the warden”); see also Stern v. Marshall, 131 S. Ct. 2594,

2609 (2011) (explaining that the life tenure and salary protec-

tions of Article III were adopted to create the conditions under

which judges would be likely to act free from improper influ-

ence). We have already held that the structure of the Board

shows that its Members are sufficiently insulated from politi-

cal influence. See Mishler, 191 F.3d at 1007. Even if Buckw-

alter’s claim that a scandal influenced the Board Members’

behavior is true, that fact does not gainsay the Board Mem-

bers’ political independence. After all, “[j]udges do not exist

in a vacuum.” Hoptowit v. Ray, 682 F.2d 1237, 1261 (9th Cir.

1982), abrogated on other grounds by Sandin v. O’Connor,

515 U.S. 472 (1995).

[8] As was true in Mishler, the fourth Butz factor points in

neither direction, because it is unclear whether the Board

Members rely on precedent when they exercise their summary

authority. Id. But the last Butz factor, the correctability of

errors on appeal, favors absolute immunity: an erroneous

summary suspension may be corrected in either the postde-

privation hearing or in Nevada state court in a subsequent

appeal. See Nev. Rev. Stat. § 630.356(1) (“Any person

aggrieved by a final order of the Board is entitled to judicial

review of the Board’s order.”).

Buckwalter raises two arguments that errors of judgment in

the Board Members’ exercise of the summary suspension

authority are insufficiently correctable. First, he points out

that summary suspension proceedings and postdeprivation

hearings involve different questions. In a disciplinary hearing,

the Board asks whether a physician’s malpractice merits the

permanent deprivation of his license. In a summary suspen-

sion hearing, by contrast, it asks whether a physician is an

6554 BUCKWALTER v. NEVADA BD OF MED. EXAMINERS

imminent danger to public safety. For that reason, argues

Buckwalter, the Board might conduct a disciplinary hearing

and find a physician not guilty of the charges in the adminis-

trative complaint without ever addressing the propriety of the

summary suspension.

Whatever distinction there is between these inquiries is

without a difference. In Buckwalter’s case—and, we suspect,

in the mine run of such cases—the allegations of past mal-

practice were the basis of the Board’s concern about the threat

to future patients. (Presumably, a serial malpractitioner virtu-

ally always imperils the public.) Had the disciplinary hearing

occurred, the allegations of malpractice might have been

proved true, vindicating the Board’s decision to suspend

Buckwalter’s privileges until he had undergone rehabilitative

discipline. Or they might have been proved false, nullifying

the summary suspension and restoring Buckwalter’s reputa-

tion. In either case, the Board would have effectively adjudi-

cated the merits of the suspension.

Second, Buckwalter argues that the statutory scheme lacks

an adequate mechanism for correcting errors because Nevada

law prohibits a state court from staying a Board order while

an appeal is pending. See Nev. Rev. Stat. § 630.356(2). In

Buckwalter’s view, the fact that he cannot obtain a stay of the

summary suspension vitiates the right of appeal.

The unavailability of a stay makes the consequences of an

error by the Board more severe, but it has no bearing on

whether the error is ultimately correctable. Nevada may pre-

clude a stay as it sees fit. See State ex rel. Kassabian v. State

Bd. of Med. Exam’rs, 235 P.2d 327, 332 (Nev. 1951) (affirm-

ing the right of the legislature to prohibit Nevada courts from

staying an order of the state medical board). What matters for

our purposes is that judicial review is available.5

5

Buckwalter also argues, albeit in a footnote, that the prohibition on

staying a Board order violates the Nevada state constitution by trenching

on the state courts’ constitutionally guaranteed power to issue writs of

injunction. See Nev. Const. art. 6, § 1. Because this is an action for depri-

vations of federal constitutional rights, we need not address this argument.

BUCKWALTER v. NEVADA BD OF MED. EXAMINERS 6555

Buckwalter urges us to follow DiBlasio v. Novello, 344

F.3d 292 (2d Cir. 2003). In DiBlasio, the Second Circuit

refused to extend absolute immunity to employees of the New

York State Department of Health who summarily suspended

a radiologist’s medical license under New York Public Health

Law § 230. Id. at 298-302.

DiBlasio is of little use to Buckwalter, however, because

the New York statutory scheme governing summary suspen-

sions is fundamentally different from that of Nevada. New

York law empowers the Commissioner of the State Depart-

ment of Health to unilaterally suspend a physician’s license

following an investigation by the State Board of Professional

Medical Conduct. Id. at 297 (citing N.Y. Pub. Health Law

§ 230(12)(a)). The Commissioner alone has the power to

judge when a licensee constitutes an imminent public threat

and to issue summary suspensions. Id. New York law requires

a postdeprivation hearing to begin within ten days, but the

Commissioner has the authority either to adopt the hearing

committee’s recommendation or to leave the summary order

in effect pending a final resolution of the case. Id.

The DiBlasio court concluded that, because the statutory

scheme arrogated “virtually unfettered” power to the Com-

missioner to issue summary suspensions, it lacked the proce-

dural safeguards that are the hallmark of judicial proceedings.

Id. at 299. Moreover, the right to a prompt postdeprivation

hearing was rendered hollow by the Commissioner’s “free[-

dom] to ignore the hearing committee’s recommendation.” Id.

(“[T]he hearing available under § 230, while providing an

avenue for review of the charges themselves, provides no

meaningful review of the summary suspension . . . .”).

The Nevada scheme, of course, is very different. No autar-

chic commissioner-figure may impose summary suspensions

by fiat, and only the state courts may reverse the results of

disciplinary hearings. Consequently, DiBlasio has limited rel-

evance to our analysis. By contrast, when our sister circuits

6556 BUCKWALTER v. NEVADA BD OF MED. EXAMINERS

have confronted schemes similar to Nevada’s, they have con-

sistently granted absolute immunity to board members. See

Watts v. Burkhart, 978 F.2d 269, 276-77 (6th Cir. 1992) (en

banc) (holding that members of the Tennessee medical board

were absolutely immune when they exercised summary sus-

pension authority under a statutory scheme identical in all rel-

evant respects to Nevada’s); see also Wang v. N.H. Bd. of

Registration in Med., 55 F.3d 698, 700-02 (1st Cir. 1995)

(granting absolute immunity to the members of New Hamp-

shire’s medical board, who summarily suspended the license

of a physician who was subject to professional discipline in

another state); Horwitz v. State Bd. of Med. Exam’rs, 822 F.2d

1508, 1515 (10th Cir. 1987) (holding that absolute immunity

protected from civil liability members of the Colorado Board

of Medical Examiners for summarily suspending a podia-

trist’s license).

[9] We are inclined to agree with these cases. Taken

together, the Butz factors indicate that the exercise of sum-

mary suspension authority is comparable to a judicial act.

This result also comports with a common-sense comparison

of the Board Members with judges: the Board Members’ sum-

mary suspension power is “directly comparable to the func-

tion performed by a judge in deciding whether to issue a

temporary restraining order or preliminary injunction.” Watts,

978 F.2d at 277. Accordingly, we hold that the Board Mem-

bers are absolutely immune from liability for the exercise of

that power.

2. Failure to provide a prompt postdeprivation hearing.

Buckwalter additionally argues that the Board Members

should not be absolutely immune from liability for failing to

provide him a prompt postdeprivation hearing. Buckwalter

points out that to this day, he has still received no postde-

privation due process. The obvious objection is that Buckw-

alter voluntarily stipulated to postpone the hearing that the

BUCKWALTER v. NEVADA BD OF MED. EXAMINERS 6557

Board was prepared to afford him. Buckwalter makes three

responses.

First, he again asserts that the hearing was intended to

address the merits of the malpractice claims, not the merits of

the Board Members’ judgment that he was an imminent dan-

ger to the citizens of Nevada. He insists that by stipulating to

vacate the postdeprivation hearing he did not relinquish his

right to a hearing on the merits of the summary suspension.

As we have already explained, the question of whether the

allegations in the administrative complaint were true is inter-

twined with the question of whether Buckwalter was a threat

to public safety. Buckwalter was entitled to one postdepriva-

tion hearing, not two.

Second, Buckwalter argues that the Board did not “prompt-

ly” institute a hearing when it unilaterally set a hearing date

more than four months after the deprivation. Buckwalter is

confusing the issue of whether the Board Members are enti-

tled to absolute immunity with whether the Board Members

deprived him of due process. If the Board Members were not

immune from suit, we would face the question of whether the

postdeprivation hearing the Board provided was sufficiently

prompt to provide due process. See, e.g., Spiegel v. Ryan, 946

F.2d 1435, 1442 (9th Cir. 1991).

[10] But, having decided that the Board Members are

absolutely immune, it is clear that they were acting in a judi-

cial capacity when they set the hearing date. See Curry v.

Castillo (In re Castillo), 297 F.3d 940, 951-53 (9th Cir. 2002)

(holding that the scheduling of hearings by a bankruptcy

trustee is a discretionary function protected by absolute

immunity). The manner in which they set the hearing date is

therefore irrelevant. See Mishler, 191 F.3d at 1006 (“The acts

of the Nevada Board are no less judicial or prosecutorial

because they may have been committed in error. It is the

available procedures, not the manner in which they are exer-

cised in a particular case, that is the critical inquiry . . . .”)

6558 BUCKWALTER v. NEVADA BD OF MED. EXAMINERS

(internal citation omitted). Once we have decided that an offi-

cial enjoys absolute immunity from liability for a particular

statutorily authorized action, any inquiry into the adequacy of

the official’s performance is foreclosed. See Olsen v. Idaho

State Bd. of Med., 363 F.3d 916, 928 (9th Cir. 2004).

Third, Buckwalter argues that he could not request a hear-

ing because he was forced to continue to negotiate a settle-

ment with the Board, lest he “anger[ ] them and risk[ ]

draconian penalties.” The record shows that Buckwalter was

free to withdraw from the stipulation at any time. No evidence

suggests that the Board would have refused to reinstate the

hearing date. Buckwalter may now regret the months he spent

in fruitless settlement negotiations, but it was his choice not

to proceed to hearing. The Board should not bear the burden

of Buckwalter’s litigation decisions.

[11] The Board Members were acting within the scope of

their judicial function when they set a hearing date following

the summary suspension and when they stipulated with Buck-

walter to postpone the hearing. They are absolutely immune

from liability for those actions.

B. Younger abstention.

Absolute immunity is not a bar to injunctive or declaratory

relief. See Pulliam v. Allen, 466 U.S. 522, 541-42 (1984). The

district court, however, held that Younger abstention required

it to dismiss Buckwalter’s equitable claims. We agree.6

6

While this appeal was percolating, the Board voted unanimously to lift

the summary suspension of Buckwalter’s prescribing privileges. (He still

faces a disciplinary hearing before the Board on the merits of the adminis-

trative complaint.) Buckwalter’s prayer for an injunction to terminate the

summary suspension is moot. See Aiona v. Judiciary of Haw., 17 F.3d

1244, 1248 (9th Cir. 1994).

We conclude, however, that Buckwalter’s case is not moot, for two rea-

sons. First, because the disciplinary hearing has not yet occurred—

BUCKWALTER v. NEVADA BD OF MED. EXAMINERS 6559

[12] Younger abstention requires federal courts to abstain

from hearing claims for equitable relief as long as the state

proceedings are ongoing, implicate important state interests,

and provide an adequate opportunity to raise federal ques-

tions. See Middlesex Cnty. Ethics Comm. v. Garden State Bar

Ass’n, 457 U.S. 423, 432 (1982); Potrero Hills Landfill, 657

F.3d at 882.

Buckwalter concedes that the Board’s administrative pro-

cess is ongoing (and that it was ongoing at the time he filed

his complaint). He argues, however, that the administrative

hearing will not address the merits of the summary suspen-

sion. As we have explained above, the Board’s adjudication

of the administrative complaint will necessarily resolve the

merits of the summary suspension.

[13] The second Younger factor is not in dispute. It is self-

evident that the Board’s disciplinary proceedings implicate

the important state interest of ensuring quality health care. See

Kenneally v. Lungren, 967 F.2d 329, 331-32 (9th Cir. 1992);

see also Gibson v. Berryhill, 411 U.S. 564, 576-77 (1973)

(“[A]dministrative proceedings looking toward the revocation

of a license to practice medicine may in proper circumstances

command the respect due court proceedings . . . .”). And it is

equally obvious that to substitute this court’s judgment about

the merits of the summary suspension for the Board’s would

interfere with Nevada’s authority to regulate physicians prac-

ticing within its borders. See Potrero Hills Landfill, 657 F.3d

at 883 (“The key to determining whether comity concerns are

implicated in an ongoing state proceeding—and thus whether

the second Younger requirement is met—is to ask whether

wherein the facts giving rise to the Board’s judgment that Buckwalter was

a threat to public safety will either be proven or rebutted—issuing declara-

tory relief at this juncture might at least have some effect on Buckwalter’s

reputation. Id. Second, Buckwalter seeks a separate hearing on whether he

posed an imminent threat to the safety of the public. This claim for relief

is not moot.

6560 BUCKWALTER v. NEVADA BD OF MED. EXAMINERS

federal court adjudication would interfere with the state’s

ability to carry out its basic executive, judicial, or legislative

functions.”).

[14] The third factor is satisfied by the fact that Nevada

courts may entertain federal questions when they review the

Board’s judgments. See, e.g., Minton v. Bd. of Med. Exam’rs,

881 P.2d 1339, 1354-55 (Nev. 1994) (considering a federal

due-process challenge to a license revocation). Should he lose

in the disciplinary hearing, Buckwalter will have an adequate

opportunity to raise his federal constitutional challenges on

appeal. See Ohio Civil Rights Comm’n v. Dayton Christian

Sch., Inc., 477 U.S. 619, 629 (“[I]t is sufficient under Middle-

sex that constitutional claims may be raised in state-court

judicial review of the administrative proceeding.” (citation

omitted)).

[15] The district court properly abstained from hearing

Buckwalter’s claims for equitable relief.

IV. Conclusion

We have previously held that the Board Members are func-

tionally comparable to judges. Mishler, 191 F.3d at 1007. We

now hold that the Board Members’ exercise of their summary

suspension authority is comparable to a judicial act. Hence,

the Board Members are entitled to absolute immunity. The

district court was correct to dismiss Buckwalter’s claim for

damages.

Younger abstention compels the dismissal of Buckwalter’s

remaining claims in equity. Buckwalter maintains that the

Board exaggerated the risk that his professional conduct

posed to the public and deprived him of his livelihood on

flimsy evidence. Perhaps so. But the proper forum to chal-

lenge these allegedly improper actions was in an adversary

disciplinary proceeding, which he could have demanded at

BUCKWALTER v. NEVADA BD OF MED. EXAMINERS 6561

any time but steadfastly elected to postpone. Until the Nevada

procedure has run its course, we have no role.

AFFIRMED.