Watts v. Burkhart

• Citation: 978 F.2d 269
• Decision Date: 28 October 1992
• Docket Number: No. 89-6160,89-6160
• Parties: Bobby WATTS, M.D., Plaintiff-Appellee, v. John H. BURKHART, M.D., Howard R. Foreman, M.D., Alvin J. Ingram, M.D., I. Lee Arnold, M.D., and Duane C. Budd, M.D., Defendants-Appellants. . Re
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 269

978 F.2d 269

61 USLW 2274

Bobby WATTS, M.D., Plaintiff-Appellee, v. John H. BURKHART, M.D., Howard R. Foreman, M.D., Alvin J.

Ingram, M.D., I. Lee Arnold, M.D., and Duane C.

Budd, M.D., Defendants-Appellants.

No. 89-6160.

United States Court of Appeals, Sixth Circuit.

Reargued Aug. 12, 1992.

Decided Oct. 28, 1992.

William M. Barrick (argued and briefed) Nashville, Tenn., for plaintiff-appellee.

Jerry W. Taylor, Charles W. Burson, Atty. Gen., Debra K. Inglis, Asst. Atty. Gen., John Knox Walkup, Sol., and Myra L. Sanderson, and Kent E. Krause, Brewer, Krause & Brooks, Nashville, Tenn., for defendants-appellants.

Before: MERRITT, Chief Judge; KENNEDY, MARTIN, JONES, MILBURN, GUY, NELSON, RYAN, BOGGS, NORRIS, SUHRHEINRICH, SILER, and BATCHELDER, Circuit Judges.

DAVID A. NELSON, Circuit Judge.

This appeal presents a question on which there has been a sharp conflict between our circuit and others: whether the members of a state medical licensing board, when sued individually for damages in connection with the board's suspension or revocation of a physician's license, are protected by quasi-judicial immunity.

Relying on our decision in Manion v. Michigan Bd. of Medicine, 765 F.2d 590 (6th Cir.1985), the district court answered the question in the negative. A majority of the three-judge panel that initially heard this phase of the case on appeal concluded that although Manion probably could not be distinguished, neither could it be reconciled with earlier Sixth Circuit decisions holding that such immunity attached to members of a state bar grievance committee who performed judicial-like functions in recommending disbarment of a lawyer and to social workers who performed prosecutorial-like functions in removing children from allegedly unsuitable homes. Ginger v. Circuit Court, 372 F.2d 621 (6th Cir.), cert. denied, 387 U.S. 935, 87 S.Ct. 2061, 18 L.Ed.2d 998 (1967); Kurzawa v. Mueller, 732 F.2d 1456 (6th Cir.1984). See also Salyer v. Patrick, 874 F.2d 374 (6th Cir.1989) (quasi-judicial immunity protects social workers performing prosecutorial-like functions in filing child abuse petitions). The panel majority elected to follow the Ginger line of authority, and the judgment of the district court was reversed. One judge dissented on the grounds that our circuit precedents were not in direct conflict and that Manion, even if decided incorrectly, was therefore controlling. ¹ All of the judges agreeing that the panel decision was in conflict with Manion, the court subsequently voted to rehear the instant case en banc. The parties filed supplemental briefs, and oral argument was held before the full court. The court has now concluded that on the facts of this particular case, the better view is that the members of the medical licensing board are protected by quasi-judicial immunity, a form of immunity also known as "absolute immunity." We shall therefore reverse the judgment of the district court, overruling Manion to the extent of the inconsistency.

I

Much of the factual and procedural background of the case is set forth in an earlier opinion reported as Watts v. Burkhart, 854 F.2d 839 (6th Cir.1988). A somewhat truncated statement of the case will suffice for present purposes.

The plaintiff, Bobby Watts, is a medical doctor licensed to practice in Tennessee. His practice is focused on weight-loss programs in which he prescribes a drug known as Preludin. ²

On October 21, 1985, the Division of Health Related Boards of the Tennessee Department of Health and Environment brought charges of malpractice and unprofessional conduct against Dr. Watts before the Tennessee Board of Medical Examiners. The notice of charges stated, among other things, that Dr. Watts had prescribed controlled substances in such quantities that the public health, safety and welfare "imperatively require[d] emergency action" under Tenn.Code Ann. § 4-5-320(c). This provision, which is part of Tennessee's Administrative Procedures Act, authorizes summary suspension of a physician's license pending the outcome of revocation proceedings.

Dr. Watts was advised of a hearing to be held before the Board of Medical Examiners on October 30, 1985. At that time, the notice of charges said, the board would be asked to suspend the doctor's medical license summarily, pending a final determination as to whether the license should be revoked or other discipline should be imposed. The notice advised Dr. Watts of his right to be represented by legal counsel.

Dr. Watts appeared at the suspension hearing without counsel. At the conclusion of the hearing the board obtained Dr. Watts' signature on a printed form embodying a "voluntary" surrender of a certificate evidencing that the United States Drug Enforcement Administration had authorized him to handle controlled substances. The doctor alleges that he signed the surrender form only because the board told him that his state license would be suspended if he did not do so.

Through counsel, Dr. Watts subsequently advised the board of his desire to withdraw the surrender of the DEA certificate. The division then asked the board for a new hearing on the motion for summary suspension.

Dr. Watts filed the instant lawsuit in federal district court before such a hearing could be convened. By agreement, he was allowed to continue using his DEA certificate.

Named as defendants in the complaint, which was brought under 42 U.S.C. § 1983, were the Division of Health Related Boards and the five physicians who comprise the Board of Medical Examiners. The division itself was eventually dismissed on sovereign immunity grounds, and the complaint was amended to make it clear that the board members were being sued in their individual capacities.

The action was predicated on alleged violations of Dr. Watts' due process and equal protection rights. As to equal protection, the complaint alleged that "as a result of several well-publicized actions involving black physicians, [Dr. Watts, who is black,] was not afforded a presumption of innocence by the Defendant Board Members, and [ ] he was treated in a manner different from similarly situated physicians." The due process claim rested on allegations that the proceedings before the board were defective because, among other things, the charges had not been stated with sufficient specificity, no proper record was made at the hearing, witnesses were allowed to testify "off the record" and not under oath, and the board acted arbitrarily and capriciously in presuming Dr. Watts to be guilty and in coercing the surrender of his DEA certificate. The complaint sought not only injunctive relief, but compensatory and punitive damages approaching $2 million.

The district court dismissed the action against the defendant board members pursuant to Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), concluding that adequate remedies were available under state law. In the decision reported at 854 F.2d 839, this court reversed the dismissal. The panel was unanimous in the view that it was error to dismiss the equal protection claim, and a majority of the panel concluded that the dismissal of the due process claim constituted error as well.

On remand, the defendants moved for dismissal on the ground that they were entitled to absolute immunity. This defense had not been raised previously. The district court denied the motion on the strength of Manion v. Michigan Bd. of Medicine, 765 F.2d 590, supra, and the present appeal followed. We are asked only to rule on the merits of the defense, and not to decide whether its assertion was timely.

II

In the leading case of Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646 (1872), the Supreme Court applied the doctrine of judicial immunity to sustain the dismissal of a damage action brought against a judge who had ordered the disbarment of a lawyer without first according the lawyer an opportunity to be heard. Disbarment is a judicial act, the Court decided, even when performed in an "erroneous manner"--and without "clear absence of all jurisdiction over the subject-matter," judges "are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly." 80 U.S. (13 Wall.) at 351-52. This continues to be an accurate statement of the law. Stump v. Sparkman, 435 U.S. 349, 355-57, 98 S.Ct. 1099, 1104-05, 55 L.Ed.2d 331 (1978).

The same sort of absolute immunity that applies to judges in the performance of judicial acts applies as well to prosecutors in the performance of their official functions. Yaselli v. Goff, 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395 (1927), aff'g, 12 F.2d 396 (2d Cir.1926); Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). See Butz v. Economou, 438 U.S. 478, 508-11, 98 S.Ct. 2894, 2911-13, 57 L.Ed.2d 895 (1978), for a full exposition of the development of the modern absolute immunity doctrine as applied to judges and prosecutors.

In Ginger v. Circuit Court, 372 F.2d 621, supra, our court held that absolute immunity from liability for damages resulting from the disbarment of a lawyer applied not only to judges, but to the members of a state bar grievance committee that had recommended revocation of the plaintiff's license to practice law. Similar results have been reached by other courts; see Clulow v. Oklahoma, 700 F.2d 1291, 1298 (10th Cir.1983); Simons v. Bellinger, 643 F.2d 774 (D.C.Cir.1980); Mayes v. Honn, 542 F.2d 822, 824 (10th Cir.1976) (dictum); Verner v. Colorado, 533 F.Supp. 1109, 1115 (D.Colo.1982), aff'd, 716 F.2d 1352 (10th Cir.1983), cert. denied, 466 U.S. 960, 104 S.Ct. 2175, 80 L.Ed.2d 558 (1984).

In Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, supra, the Supreme Court decided that absolute immunity could be extended to non-judges for actions taken in suspending the plaintiff's business license. The Secretary of Agriculture and various officials in his...