                    United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-3000
                                   ___________

Stacy Lane VanHorn,                  *
                                     *
             Appellee,               *
                                     *
      v.                             *
                                     *
Dennis Oelschlager, Individually     *
and in his Capacity as Executive     *
Secretary of the Nebraska State      *
Racing Commission; Dennis P. Lee,    *
Individually and in his Capacity     *
as Chairman of the Nebraska State    *
Racing Commission; Janell Beveridge, *
Individually and in her Capacity     *
as Commissioner of the Nebraska      *
State Racing Commission;             *
Bob Volk, Individually and in his    *
Capacity as Commissioner of the      *
Nebraska State Racing Commission,    *
                                     *
             Appellants,             *     Appeal from the United States
____________________                       District Court for the
                                           District of Nebraska.
Douglas L. Brunk,                      *
                                       *
            Appellee,                  *
                                       *
      v.                               *
                                       *
Dennis Oelschlager, Individually       *
and in his Capacity as Executive       *
Secretary of the Nebraska State        *
Racing Commission; Dennis P. Lee,      *
Individually and in his Capacity       *
as Chairman of the Nebraska State      *
Racing Commission; Janell Beveridge,   *
Individually and in her Capacity       *
as Commissioner of the Nebraska        *
State Racing Commission;               *
Bob Volk, Individually and in his      *
Capacity as Commissioner of the        *
Nebraska State Racing Commission,      *
                                       *
            Appellants.                *
                                  ___________

                            Submitted: March 17, 2006
                               Filed: August 10, 2006
                                ___________

Before ARNOLD and SMITH, Circuit Judges, and MAGNUSON,1 District Judge.
                            ___________

SMITH, Circuit Judge.

       Dr. Stacy Lane VanHorn and his employer, Dr. Douglas L. Brunk ("Doctors"),
are licensed veterinarians in the state of Nebraska. VanHorn and Brunk brought suit
against Dennis Oelschlager, the Executive Secretary for the Nebraska State Racing
Commission ("Commission"), and its three appointed Commissioners, Chairman
Dennis P. Lee, Janell Beveridge, and Bob Volk ("Commissioners"), alleging they
were denied due process and equal protection when they were disciplined by the
Commission and banned from treating race horses. The district court denied the
Commissioners' and Oelschlager's motion for summary judgment based on qualified
or quasi-judicial immunity, finding that they did not provide the court with a


      1
      The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota, sitting by designation.

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meaningful statement of facts2 that were "pertinent to the outcome of the issues
identified in the motion for summary judgment." (J.A. 190 (quoting NECivR
56.1(a)(2)). This appeal followed. For the reasons set forth below, we reverse.

                                         I. Facts
       Drs. VanHorn and Brunk were licensed by the Commission to examine and
treat horses registered for racing prior to and during 2001. In March 2001, ten horses,
under the care of Dr. Brunk's veterinary clinic, tested positive for Clonidine. Clonidine
is a permissible generic blood pressure medication, but it is prohibited from being
administered on race day and prohibited from being in the blood stream of the horse
immediately following a race. On January 7, 2002, the Commission filed separate but
nearly identical formal disciplinary complaints against VanHorn and Brunk, charging,
inter alia, that the Doctors violated the rules of racing by administering Clonidine to
certain horses within 24 hours of post time, i.e., 24 hours before a race. The Doctors
were also notified that if they applied for a license to treat race horses in 2002,
Oelschlager would refer the applications to the Commission for a hearing with the


      2
       Because the appellees, VanHorn and Brunk, failed to respond to the appellants'
statement of material facts as required by Local Rule 56.1(b)(1) for the District of
Nebraska, the district court deemed admitted all material facts in the appellants'
statement. Therefore, on summary judgment, there were no material facts in dispute.
Local Rule 56.1(b)(1) states in relevant part:

      (b) Opposing Party.
      (1) Response to Movant's Statement. The party opposing a motion for
      summary judgment shall include in its brief a concise response to the
      moving party's statement of material facts. The response shall address
      each numbered paragraph in the movant's statement and, in the case of
      any disagreement, contain pinpoint references to affidavits, pleadings,
      discovery responses, deposition testimony (by page and line), or other
      material upon which the opposing party relies. Properly referenced
      material facts in the movant's statement will be deemed admitted unless
      controverted by the opposing party's response.

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recommendation that the Doctors be required to show cause why the license should
not be denied.

       On April 5, 2002, VanHorn applied for a license to treat race horses. The
Commission informed VanHorn that it would hold his application for further
investigation. On May 10, 2002, VanHorn applied for a temporary license, which the
Commission denied upon the recommendation of Oelschlager. The Commission
conducted a hearing on its complaint and on VanHorn's April license application.
During the hearing, the Doctors were represented by counsel, called witnesses,
including an expert witness, and presented documentary and testimonial evidence.

       The Commission found numerous violations and disciplined the Doctors. The
Commission imposed a $2,000 fine, banned them from all premises under the
Commission's jurisdiction and declared them ineligible for a license until January 1,
2006. In April 2003, the Commission issued a directive that any race horse examined
or treated off-premises by a veterinarian who was ineligible for a commission license
would not be permitted to race for 14 days. The Doctors claim that this directive only
applied to horses that they treated.

       Pursuant to the Nebraska Administrative Procedure Act, the Doctors appealed
the Commission's decision to the Lancaster County District Court. The court ruled that
there was insufficient evidence to support any of the Commission's charges except a
failure by the Doctors to properly handle, package, and report their drug supply; it also
found that the proper remedy for this violation was a $2,000 fine and a ban lasting
only until July 1, 2003. The Commission appealed unsuccessfully in state court.

      On July 2, 2003, VanHorn again applied for an annual license. The next day,
he was told that his application would be held for further investigation. On July 8,
2003, VanHorn applied for a temporary license. This application was also placed on
hold. A hearing on the temporary application was then set for September 22, 2003,

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well past the end of the 2003 racing season. VanHorn withdrew his license
application, and the Doctors filed the instant action in district court.

                                      II. Discussion
       Oelschlager and the Commissioners argue that the district court, in denying
their motion for summary judgment, erroneously found that they failed to provide a
meaningful statement of facts in support of their motion. The appellants assert that the
uncontroverted evidence established that the Commissioners and the Executive
Secretary were acting at all relevant times under the umbrella of qualified or absolute
immunity. The appellees respond by stating that the district court's summary judgment
decision should be affirmed because a reasonable official would have understood that
his actions violated the appellees' due process and equal protection rights. Further, the
appellees contend that, in light of preexisting law, the unlawfulness of the appellants'
actions was apparent.

       "While the denial of a motion for summary judgment is generally unreviewable
as an impermissible interlocutory appeal, we have limited authority under the
collateral order doctrine to review the denial of a motion for summary judgment to the
extent the motion is based on the right to absolute or qualified immunity, which
protects a defendant from having to defend a lawsuit." Hinshaw v. Smith, 436 F.3d
997, 1002 (8th Cir. 2006). We review de novo the district court's denial of the
appellants' motion for summary judgment. Penn v. United States, 335 F.3d 786, 789
(8th Cir. 2003).

    "Persons who perform quasi-judicial functions are entitled to absolute
immunity." Dunham v. Wadley, 195 F.3d 1007, 1010 (8th Cir. 1999).

      The Supreme Court has held that absolute immunity is appropriate when
      an official's functions are similar to those involved in the judicial
      process, an official's actions are likely to result in lawsuits for damages


                                          -5-
      by disappointed parties, and sufficient safeguards exist in the regulatory
      framework to control unconstitutional conduct.

Id. (internal citations omitted). Upon careful review, we find that the appellants are
entitled to absolute, quasi-judicial immunity. The Commission consists of three
members appointed by the governor and confirmed by the legislature, and one
Executive Secretary hired by the Commission. Neb. Rev. Stat. §§ 2-1201, 2-1202. The
appointments are arranged so that one expires every year. When conducting
disciplinary hearings, the Commission is empowered by statute to do the following:

      (1) prepare an official record which shall include testimony and exhibits;
      (2) admit evidence pursuant to the rules of evidence applicable in state
      court;
      (3) give effect to the rules of privilege recognized by law;
      (4) administer oaths, issue subpoenas, compel the attendance of
      witnesses and the production of any papers, books, accounts, documents
      and testimony and cause depositions to be taken;
      (5) take notice of judicially cognizable facts and take notice of general,
      technical, or scientific facts within its specialized knowledge;
      (6) require the submission of briefs;
      (7) render its final decision stating its findings of fact and conclusions of
      law; and, inter alia,
      (8) designate any person(s) to make investigations as the Commission
      deems necessary to assist with the determination of any matter within its
      jurisdiction.

294 Neb. Admin. Code, Ch.7, §§ 001.10, .10A, .10B, .10E, .10F, .10G & .13 (2006).

       In addition, the person who is the subject of a disciplinary hearing is entitled to
the following as a matter of right:

      (1) to remain silent;
      (2) to the benefit of counsel, including the opportunity to confer with
      counsel in preparation of a defense;

                                           -6-
      (3) to a speedy and public hearing;
      (4) to present evidence and to testify in person at his or her hearing;
      (5) to cross-examine witnesses who testify against him or her;
      (6) to appear personally and be represented by counsel, or appear by and
      through such counsel or other personal representative;
      (7) a decision in writing from the Commission accompanied by findings
      of fact and conclusions of law;
      (8) if aggrieved by the final decision of the Commission, any party may
      request a rehearing by the Commission; and, inter alia,
      (9) "Any party aggrieved by the decision of the Racing Commission after
      the hearing, rehearing or denial of a rehearing may appeal to a District
      Court of the State . . ."

Neb. Rev. Stat. § 2-1245(6) (2005); 294 Neb. Admin. Code, Ch. 7, §§ 001.09, .11, .14
& .15 (2006).

       As evidenced by these statutory provisions, first, the Commission's powers in
conducting disciplinary hearings are similar to judicial powers. Second, the
Commissioners' actions are likely to result in lawsuits for damages by disappointed
parties, as illustrated by the instant lawsuit. Third, sufficient safeguards exist in the
regulatory framework to control unconstitutional conduct. Specifically, aggrieved
parties may appeal the Commission's decision in state court.

       Here, the Commission held hearings regarding the complaints against VanHorn
and Brunk on September 23 and 24, October 22, and November 24, 2002. VanHorn
and Brunk received copies of all documents relied upon by the Commission in those
hearings. On December 23, 2002, the parties submitted closing arguments by brief.
On December 31, 2002, the Commission issued its findings of fact and conclusions
of law. "To the extent that the [Commission] weighed evidence, made factual
determinations, determined sanctions, and issued [a] written decision[], we conclude
that these duties are functionally comparable to the duties performed by courts."
Dunham, 195 F.3d at 1011.


                                          -7-
       In Dunham, a veterinarian sued members of the Arkansas Veterinary Medical
Examining Board, claiming that she was deprived of her property interest in a
statutory licensing exemption without receiving due process of law. Id. at 1009. We
held that the board members were entitled to absolute, quasi-judicial immunity by
virtue of the fact that their proceedings were quasi-judicial in nature. Id. The same
reasoning applies to the facts of this case. Not only are the reviewing bodies similar
in nature, but their functions are virtually identical. Thus, the holding in Dunham is
controlling in the instant case. Because the appellants' "actions were functionally
comparable to those of judges and prosecutors, they are entitled to absolute
immunity." Id. at 1011.

                                 III. Conclusion
      For the reasons stated, the district court's denial of summary judgment is
reversed, and this case is remanded for further proceedings consistent with this
opinion.
                      ______________________________




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