In this interlocutory appeal, Nebraska Attorney General Jon Bruning seeks reversal of the district court’s decision denying him absolute and qualified immunity in the lawsuit brought under 42 U.S.C. § 1983 by Gregory M. Kloch, M.D., which claimed that provisions of Nebraska’s Uniform Licensing Law violated the due process clause of the Fifth and Fourteenth Amendments to the United States Constitution. We reverse.
I.
Dr. Kloсh is a physician licensed by the state of Nebraska who maintains a family practice in Lexington, Nebraska. Until very recently, 1 physicians in Nebraska were regulated through a statutory scheme known as the Uniform Licensing Law. 2 Neb.Rev.Stat. § 71-101 et seq. (2007) (recodified with amendments as the Uniform Credentialing Act, Neb.Rev.Stat. § 38-101 et seq. (2008)). The Uniform Licensing Law distinguished between investigation, prosecution, and adjudication of disciplinary actions against a physician’s license; and the law provided for a different agency or official to take responsibility for each part of the disciplinary process.
Investigations were conducted by the Nebraska Department of Health and Human Services Regulation and Licensure (Department оf Health). After completing an investigation, the Department of Health would consult with the Board of Medicine and Surgery (Medical Board), which would make disciplinary recommendations to the Nebraska Attorney General. Id. § 71-168.01. The Attorney General would then decide whether or not to prosecute a disciplinary action against the physician. Disciplinary action could include revoking, suspending, or restricting a physician’s license; imposing a civil penalty; placing a physician on probation; or issuing a cen *605 sure. See Neb.Rev.Stat. §§ 71-155, 71-171. If the Attorney General decided to prosecute a case, a formal hearing was required, and a neutral official would adjudicate the dispute. Id. § 71-155(1).
For cаses that involved “a technical or insubstantial violation,” however, the Attorney General had the option of referring the case back to the Medical Board with instructions to issue a nondisciplinary letter of concern. Id. § 71-171.01(3). The provisions of the statute at issue in this case read as follows:
Section 71-171.01. The [Department of Health] shall providе the Attorney General with a copy of all complaints it receives and advise the Attorney General of investigations it makes which may involve any possible violation of statutes or rules and regulations by the credentialed person. The Attorney General shall then determine which, if any, statutes, rules, or regulations the credentialed person has violated and the appropriate legal action to take. The Attorney General may ... (3) in cases involving a technical or insubstantial violation, refer the matter to the appropriate professional board for the opportunity to resolve the matter by issuance of a letter of concern or to recommеnd to the Attorney General that he or she enter into an assurance of compliance with the credentialed person in lieu of filing a petition. Neither a letter of concern nor an assurance of compliance shall constitute discipline against a credentialed person.
Section 71-171.02. Upon referral of a mattеr under section 71-171.01 by the Attorney General, the professional board may: (1) Send to the credentialed person a letter of concern, approved by the Attorney General, which includes a statement of the statute, rule, or regulation in question and a statement advising the credentialed person of the conduct that would violate such statute, rule, or regulation. Such letter shall be signed by the board and shall become a part of the public record of the credentialed person....
In May 2002, Dr. Kloch received notice from the Department of Health that a complaint had been filed against him. Dr. Kloch was informed that an investigation would be conducted, and he was asked tо submit his curriculum vitae. Dr. Kloch responded by contacting the investigator assigned to his case but was apparently unable to obtain details about the patient involved or the incident under review.
Three months later, Dr. Kloch received a letter of concern from the Medical Board. The letter explained that Dr. Kloch had been investigatеd for failing to keep proper medical records on a patient who had received emergency treatment in 2001. It further advised Dr. Kloch that failure to adequately maintain records was a form of unprofessional conduct for which a physician’s license could be - disciplined. The letter detailed the Medical Board’s findings — stating, for instаnce, that Dr. Kloch had erroneously recorded that the patient “did not have a palpable pulse,” and “documented that the surgeon ..., rather than the patient, had undergone a thoracotomy.” The letter concluded by stating: “Please accept this Letter of Concern as a caution. This Letter of Concern is not considered a disciplinary action against your license” (emphasis in original). In accordance with the then-extant law, the letter was made part of Dr. Kloch’s public record and was available on the Department of Health’s website. See id. § 71-171.02.
After receiving the letter of concern, Dr. Kloch twice attempted to have it expunged. He attended Mediсal Board meetings in October 2002 and August 2004, *606 each time denying the allegations in the letter and asking the Medical Board to reconsider. After the Medical Board refused to do so, Dr. Kloch filed this action, alleging that the issuance of the letter violated his due process rights because he was given neither adequate notice of the charges against him nor an opportunity to respond to those charges. The complaint named Bruning as a defendant in both his individual and official capacity. It also named as defendants several Medical Board members and the past and present director of the Department of Health.
The parties submitted cross-motions for summary judgment, contesting the constitutionality of the Uniform Licensing Law and the issue of immunity. Concluding that Dr. Kloch had a protected property interest in his medical license and that the Uniform Licensing Law allowed the state of Nebraska to deprive physicians of property without affording them notice and an opportunity to respond, the district court held that the Uniform Licеnsing Law was unconstitutional on its face and as applied to Dr. Kloch. Accordingly, the district court enjoined Bruning and his successors from enforcing the statute; and it ordered Bruning and the Department of Health to cease disseminating the letter, to rescind the letter, and to expunge any references thereto from Dr. Kloch’s public record.
After dеciding the constitutional issue, the district court found that qualified immunity protected all defendants other than Bruning. The court denied Bruning qualified immunity, concluding that, as a licensed attorney, Bruning reasonably should have known that the law was unconstitutional. The court also rejected Bruning’s argument that he was entitled to absolute prosecutorial immunity, finding that he “did not initiate a prosecution or engage in functions closely tied to the judicial system.”
Bruning contends that the district court erred in denying his claim of both qualified and absolute immunity. Because we conclude that Bruning was entitled to qualified immunity, we do not consider his alternative argument that the prosecutorial nature of his conduct protected him from personal liability. Because the Nebraska legislature has eliminated letters of concern in its recent recodification of the Uniform Licensing Law, see Neb.Rev.Stat. § 38-1,107 (2008), the constitutionality of the original statute is relevant only as it bears on the question of Bruning’s liability to Dr. Kloch.
II.
A district court’s grant or denial of summary judgment on the issue of qualified immunity is reviewed
de novo.
See
South Dakota v. U.S. Dept. of Interior,
For government officials performing discretionary functions, qualified immunity provides a shield from civil damages except in cases in which they have violated “clearly established statutory or constitutional rights of which a reasonable person would have known.”
Thomas v. Hungerford,
III.
Dr. Kloch maintains that the Uniform Licensing Law was unconstitutional because it allowed the state to issue a public letter of concern without giving him detailed notice of the charges and an opportunity to respond. A plaintiff is entitled to due process only when a proteсted property or liberty interest is at stake. See
Hopkins v. Saunders,
We have recognized that such an entitlement may exist where a state has established a licensing system for regulation of professionals.
See Marler v. Missouri State Board of Optometry,
Bruning argues that Dr. Kloch’s medical license was unaffected by the letter of concern. He points to the language within the letter expressly stating that it is cautionary, and not a “disciplinary action against [Dr. Kloch’s] license.” We take this to mean that a letter of concern was not intended to be a barrier to practicing medicine in Nebraska. Apparently, a physician could receive any number of these notices and retain his license — so long as the state refused to pursue disciplinary measures. From a formalistic standpoint, then, it seems Dr. Kloch’s argument is without merit.
Dr. Kloch, however, urges us to accept a broader conception of that which impairs a physician’s license. He argues that the letter of concern constituted a disciplinary action because it made public a series of professional failures for which the Medical Board believed he was responsible. Noting the similarity between letters of concern and disciplinary censure, Dr. Kloch points out that the Uniform Licensing Law provided due process safeguards with respect to the latter but not the former.
In support of his argument, Dr. Kloch cites
Fleury v. Clayton,
To begin with, the censure discussed in
Fleury
was designed to be a disciplinary action. In other contexts, we have recog
*608
nized that legislative designations regarding the nature of a penalty are entitled to some consideration.
See, e.g., U.S. v. Lippert,
Under the Uniform Licensing Law, formal censure was available when the Attorney General believed that disciplinary action was necessary. The record in this case includes examples of formal censures entered by the state, and they differ from letters of concern in important respects. Formal censures are unmistakably adversarial: they are legal documents that begin with a caption naming the physician as a defendаnt in the proceeding. Dr. Kloch’s letter of concern, on the other hand, opens with a salutation and closes with a request that he “please accept this letter as a caution.” Formal censures and letters of concern are also qualitatively distinguishable in both tone and impression. Formal censures express strong condemnation of the accused, and they do so with gravity and clarity.
Moreover, the significance of a letter of concern to subsequent proceedings was minimal. The record reflects that the Medical Board could consider prior letters of concern when it screened complaints. Ultimately, however, the decision to pursue discipline rested with the Attorney General. According to an affidavit provided by Assistant Attorney General James Smith, who was tasked with prosecuting administrative disciplinary proceedings against physicians, letters of concern “would not be, should not be, and never [have] been ... relevant to or a proper subject of consideration when imposing disciрline sanctions in the event of future discipline of a doctor’s license.” (J.A. at 9.) In support of this assertion, Smith points to administrative regulations prohibiting consideration of “uncharged incidents” when discipline sanctions are imposed. Id. at 8; see also Neb. Admin. Code, Title 184, Ch. 1 § 1:013.03. “Prior disciplinary action,” in contrast, may be considered. (J.A. at 9.) Thus, Nebraska could not have disciplined a physician on the basis of conduct discussed in a letter of concern without first formally charging the physician and holding a hearing to test the allegations. Given this distinction, we conclude that the Seventh Circuit’s reasoning in Fleury is inapplicable in this case. 4
*609 The district court was troubled by the public availability of letters of concern. The court noted that public letters could have “sеrious ramifications for the accused.” The court’s concern may well have been the motivation for the legislative elimination of letters of concern from the state’s regulatory scheme. As a constitutional matter, however, Dr. Kloch is not entitled to due process protection for damage to his reputation alone; and he has failed to show that his medical license was tangibly impaired.
TV.
Even if we were to conclude that Dr. Kloch properly alleged a constitutional violation, we are satisfied that Bruning is entitled to qualified immunity under the second prong of our analysis: whether the right at issue was so clearly established that a reasonable official would have known thаt his conduct was unconstitutional.
See Weiler v. Purkett,
The judgment is reversed and the case is remanded to the district court for the entry of a judgment of dismissal.
Notes
. Although the new Uniform Credentialing Act does not become operative until December 1, 2008, Nebraska has not appealed the district court’s injunction prohibiting enforcement of the older provisions at issue here. We therefore refer to the former law in the past tense.
. Not long ago we had occasion to examine this same statutory scheme in
Buser v. Raymond,
. The Uniform Licensing Law, like similar regulatory schemes in other states, listed disciplinary action in foreign jurisdictions as a ground for revoking or restricting a physician’s license. See Neb.Rev.Stat. § 71-147; see also Iowa Code § 148.6(d) (2007) (listing “other disciplinary action taken by a licensing authority of another state”); Mo.Rev.Stat. § 334.100.2(g) (2007) (listing "[f]inal disciplinary action by ... any other state or territory”). Nebraska’s explicit statement that a letter of concern was "not disciplinary” evinces an intent to shield the recipient from such adverse consequences.
. Dr. Kloch also cites
Lowe
v.
Scott,