MILLAY v. STATE OF MAINE DEPARTMENT OF LABOR
ORDER granting in part and denying in part 46 Motion to supplement; Plaintiff's brief in support of vacating the administrative order due 5/2/13. By MAGISTRATE JUDGE MARGARET J. KRAVCHUK. (CWP)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
JOHN M. MILLAY,
STATE OF MAINE DEPARTMENT
ORDER RE: PLAINTIFF’S MOTION
TO SUPPLEMENT THE RECORD
(ECF NO. 46)
John Millay seeks to supplement the administrative record by adding three documents:
(1) evidence of satisfactory completion of the Penobscot County Job Corps program; (2) a
declaration by Joanne Millay describing the transportation expenses she incurred; and (3) a
vocational evaluation regarding vocational needs that was prepared before the current action
arose. I now grant in part and deny in part the request to supplement and further order that a new
briefing schedule be established in accordance with the original scheduling order, giving the
plaintiff 30 days from today’s date to file his brief in support of vacating the administrative
I agree with the defendant that the process for judicial review under 29 U.S.C. § 722(c) is
very similar to the judicial review process established under the Individuals with Disabilities
Education Act (“IDEA”) and the standards developed for supplementation of the administrative
record in IDEA cases are useful when applied in the context of this administrative review. The
First Circuit has held in an IDEA case that leave to supplement the record should only be granted
when the moving party presents “solid justification for doing so.” Roland M. v. Concord Sch.
Comm., 910 F.2d 983, 996 (1st Cir. 1990). The First Circuit has recognized that evidence
pertaining to the individual’s educational progress since the date of the administrative hearing
may in appropriate circumstances be relevant to supplement the record. Town of Burlington v.
Dep’t of Educ., 736 F.2d 773, 790 (1st Cir. 1984) (indicating that one of four categories of
permitted supplementation of the administrative record is for “evidence concerning relevant
events occurring subsequent to the administrative hearing”).
Applying this standard to the documentation Millay wishes to file, I conclude that the
only possible supplementation that is allowable is the evidence pertaining to Millay’s completion
of the Penobscot Job Corps program. Even that supplementation is of only marginal relevance,
but it is the type of evidence that provides some additional background to the dispute and it was
not available at the time of the administrative hearing.
As to the other two items, based on Joanne Millay’s own letter, the vocational
rehabilitation report is discredited and in any event could have been presented to the hearing
officer at the time of the initial proceedings. It might prove appropriate at a later date to submit
Ms. Millay’s personal declaration regarding costs incurred in transporting the plaintiff to the Job
Corps Program, if Millay prevails in this litigation. However, it is also possible that if Millay
prevails the court might order the case remanded to the hearing officer to determine “damages”
in the first instance. In any event, it is unnecessary to cross that bridge unless and until the court
determines that the administrative hearing officer erred in failing to award transportation
expenses beyond those authorized by the applicable regulation.
Based on the foregoing, the administrative record may be supplemented with paper
copies, filed under seal, of evidence that John Millay has satisfactorily completed his vocational
training program at Penobscot Job Corps, including certificates of accomplishment for various
aspects of his program. In all other respects the motion to supplement is denied.
Any objections to this Order shall be filed in accordance with Federal Rule of Civil
April 2, 2013
/s/ Margaret J. Kravchuk
U.S. Magistrate Judge
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