MILLAY v. STATE OF MAINE DEPARTMENT OF LABOR

Filing 53

ORDER ON PLAINTIFFS APPEAL OF ADMINISTRATIVE DECISION By JUDGE NANCY TORRESEN. (dfr)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
JOHN M. MILLAY,
Plaintiff,
v.
STATE OF MAINE,
DEPARTMENT OF LABOR,
BUREAU OF REHABILITATION
DIVISION FOR THE BLIND AND
VISUALLY IMPAIRED,
Defendant.

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) Civil No. 1:11-cv-00438-NT
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ORDER ON PLAINTIFF’S APPEAL OF ADMINISTRATIVE DECISION
John Millay, a young man of Ethiopian descent who lives with his adopted
family in Surry, Maine, petitioned Maine’s Division for the Blind and Visually
Impaired (the “DBVI”) to pay for the expenses incurred by his adopted mother in
driving him back and forth from Surry to Bangor, Maine during the course of a
culinary arts program Millay completed as a client of the DBVI’s federally funded
vocational rehabilitation services program. After a state Administrative Hearing
Officer (“AHO”) declined to overturn the DBVI’s denial of Millay’s request, Millay
brought this action under Section 102(c)(5)(J) of Title I of the Rehabilitation Act of
1973—codified at 29 U.S.C. § 722(c)(5)(J)—seeking judicial review of that
determination. For the reasons that follow, the AHO’s decision is REVERSED.

FACTUAL BACKGROUND
A.

Millay’s Background and Disability
John Millay,1 a resident of Surry, Maine, is a blind, disabled client of the

DBVI.2 Millay was born in Ethiopia in 1988.3 Though the chronology of Millay’s
early childhood is not entirely clear from the record, it appears Millay’s birth
mother died when he was three or four years old, and, after a brief stay in his aunt’s
care, Millay moved into an orphanage.4 At around the age of five, Millay was
kidnapped by an unidentified man who pierced Millay’s eyes with a pin,
intentionally blinding him.5 He then forced Millay to beg on the street and, at the
end of each day, turn over the money he collected.6 If Millay’s kidnapper was
unsatisfied with his daily haul, the man would beat Millay, leaving scars on his
back that remain to this day.7 Millay endured this treatment for two years, until he
was rescued by police and taken back to the orphanage.8
In June 2000, when Millay was either eleven or twelve years old, he was
adopted by Joanne Millay,9 a resident of Surry, Maine. Millay attended high school
in Maine and received a scholarship to attend the University of Maine at Presque
Isle (“UMPI”).10 Millay enrolled there, living alone in a residential dorm, but he

Documents in the administrative record variously report Millay’s first name as “John,”
“Johannes,” and “Yohannes.” The Court refers to him as “John Millay” or “Millay,” though some
record documents quoted below refer to him by his other names.
2
Hr’g Tr. 11, 42-43.
3
Id. at 43; Gaffney Letter 1.
4
Hr’g Tr. 43, 59; Gaffney Letter 2.
5
Hr’g Tr. 43-44, 65; Gaffney Letter 2.
6
Hr’g Tr. 44; Gaffney Letter 2.
7
Hr’g Tr. 46; Gaffney Letter 2.
8
Hr’g Tr. 45; Gaffney Letter 2.
9
For the sake of clarity, the Court refers to Joanne Millay as “Millay’s mother.”
10
Hr’g Tr. 48, 54, 76.
1

2

struggled academically and dropped out after one semester.11 Millay testified that
he was unable to sleep in the dorm, because the “dorm was wild” and he did not feel
safe in his room.12 Millay is a slight individual, just under five feet tall and
weighing about 100 pounds.13
B.

Millay’s Early Involvement with the DBVI
At some point after leaving UMPI, Millay applied to receive vocational

rehabilitation services—services to assist the disabled in finding employment—from
the DBVI.14 The DBVI is the Maine agency responsible for providing such services
to the blind.15 The DBVI’s vocational rehabilitation services program is primarily
funded by the federal government under a grant program established by Title I
(“Title I”) of the Rehabilitation Act of 1973 (the “Rehabilitation Act”).16 When
Becky Brady began working at the DBVI as a vocational rehabilitation counselor in
April of 2009, she was assigned to Millay’s case.17 Brady first met Millay in
September of 2009 to discuss Millay’s career goal of owning or working at a coffee
shop or restaurant.18 Brady suggested a number of programs Millay could enroll in
to acquire the necessary job skills, including Job Corps,19 a federally funded

Id. at 49-50.
Id.
13
Id. at 78.
14
See id. at 11.
15
See supra pp. 20-22 (discussion of statutory and regulatory background).
16
See id.
17
Hr’g Tr. 10.
18
Id.; Dep’t Ex. 1 (“Brady Case Notes”), 9/16/09, 1.
19
Some documents in the record refer to Job Corps as “JobCorps” (with no space) or “Job Corp”
(with no “s”). For the sake of clarity, the references are amended without comment where the Court
quotes from these documents.
11
12

3

program with a campus in Bangor, Maine which provides 17-to-24-year-olds with
hands-on job training.20
Among Job Corps’s offerings is a nine-to-twelve month, five-days-a-week
program in hospitality and the culinary arts provided to students free of charge
under federal grants.21 Many students who enroll in the program live in dorms on
the Job Corps’s Bangor campus.22 For those who live on-campus, federal funds—
separate from funds provided under Title I of the Rehabilitation Act of 1973—cover
not only the cost of tuition, but also room, board, meals, and a small living stipend.23
By contrast, commuting students receive only a daily travel stipend that maxes out
at $5.70 a day.24 Though there is no detailed evidence about Job Corps’s student
body in the record, the general testimony of all four witnesses at Millay’s due
process hearing suggests that the program attracts a non-traditional population,
including many who have struggled in traditional academic environments or gotten
into trouble with the law.25
Brady’s case notes indicate that she and Millay formalized what is referred to
in Title I as an “individualized plan for employment,” known as an IPE,
documenting Millay’s career goal and the DBVI’s proposed program for Millay to
achieve it.26 In a meeting on October 7, 2009, attended by Brady, Millay and Jeff
Jones, a DBVI employment rehabilitation specialist and educational consultant, the

20
21
22
23
24
25
26

Hr’g Tr. 12; Brady Case Notes, 9/16/09, 1-2.
Hr’g Tr. 16, 51, 55-56; Pl.’s Ex. 1(a) at 1 (ECF No. 51-1).
Hr’g Tr. 13-14.
Id. at 16.
Id. at 14, 16.
Id. at 29, 38-39, 53-54, 79, 84.
Brady Case Notes, 9/16/09, 2.

4

topic of Job Corps was again broached, and Jones suggest Millay take a tour of Job
Corps’s facilities in Bangor.27
At some point, though it is unclear from the record precisely when, Millay
toured Job Corps’s Bangor campus and was shown a dorm room.28 Job Corps’s
residential students live four-to-a-room, and each receive a locking cabinet in which
to store their belongings.29 Millay was concerned about the prospect of living away
from home and in such close proximity to strangers, some of them with troubled
pasts.30
C.

Millay’s Application to Attend Penobscot Job Corp Academy
On February 1, 2010, Millay applied to be admitted into Job Corps’s culinary

arts program.31 Job Corps had concerns about its ability to serve a blind student.
Samuel Kunz,32 Job Corps’s admissions counselor, requested information about
what assistance the DBVI would be able to provide.33 On March 9, 2010, Brady
responded to Kunz’s concerns by e-mail, informing him that the DBVI could provide
Millay with a “Vision Rehabilitation Therapist,” an “Orientation & Mobility
Specialist,” and an “Adaptive Technology Specialist.”34 Brady also offered that the
DBVI “would provide financial support[ ] for any significant adaptive equipment
that is determined to be necessary for [Millay] to successfully complete his
Hr’g Tr. 31-32; Brady Case Notes, 10/7/09, 1.
Gaffney Letter 3.
29
Id.; see also Hr’g Tr. 14.
30
See Brady Case Notes, 4/17/10, 1; Gaffney Letter 3.
31
Brady Case Notes, 4/17/10, 1.
32
Some documents in the record refer to Kunz as “Coombs” or “Kuntz.” For the sake of clarity,
these incorrect references are amended without comment where the Court quotes from these
documents.
33
Brady Case Notes, 7/1/2010, 3.
34
Id.
27
28

5

studies . . . .”35 Finally, Brady wrote that Millay was “very eager to hear about his
application as soon as possible.”36 Kunz replied the same day.37 He thanked Brady
for submitting the information and indicated that it would “help a great deal as [Job
Corps] go[es] through the application process.”38
By April 17, 2010, neither Millay nor the DBVI had heard back from Job
Corps about Millay’s application.39 On April 22, 2010, Brady resolved to “sit down
with Sam Kunz at Job Corps to get questions answered about . . . the continuing
delay in [the] admissions decision . . . .”40
Millay and the DBVI had still not received any word from Job Corps about
Millay’s application by July.41 On July 1, 2010, the DBVI’s Jones e-mailed Kunz to
inquire about the delay.42 Jones reminded Kunz that the DBVI was “available to
continue to provide orientation and mobility [services], vocational rehabilitation
[services,] and vision rehab instructor services” to help Millay and Job Corps’s staff
“meet[ ] the special needs associated with [Millay’s] . . . participation in the Job
Corp[s] [p]rogram.”43 On July 21, 2010, Jones received a call from Kristin Wiggins,
Job Corps’s special needs coordinator.44 According to Brady’s case notes, Wiggins

35
36
37
38
39
40
41
42
43
44

Id.
Id. at 7/1/2010, 2.
Id. at 7/1/2010, 1-2.
Id. at 7/1/2010, 1.
Id. at 4/17/2010, 1.
Id. at 4/22/2010, 1.
See id. at 7/1/2010, 1.
Id. at 7/1/2010, 1.
Id.
Id. at 7/21/10, 1.

6

told Jones she wanted to “get together” with Millay “at Job Corps . . . to begin the
admissions process and discuss adaptations needed.”45
Around May of 2010, one of Millay’s sisters,46 who is sighted, also applied to
attend the Job Corps culinary arts program.47 Unlike Millay, Millay’s sister was
accepted into the Job Corps program within a week.48
On July 22, 2010, Millay and Brady prepared and signed a new IPE, which
identified Job Corps as a service that Millay needed to achieve his work goal, known
in Title I parlance as an “employment outcome.”49 On the same day, Kunz, Millay,
Brady and Millay’s mother met to discuss Job Corps’s ongoing concerns about what
accommodations the school would need to provide in order for Millay to attend its
culinary arts program.50 Kunz told the group that he was continuing “to push for
Johannes’[s] admission to go through . . . and . . . would do everything in his power
to convince his superiors to get things moving . . . .”51 During the meeting, Millay
informed Brady and Kunz that he was considering commuting to Job Corps and
asked whether Job Corps or the DBVI would be able to reimburse him for his travel
expenses.52
Brady arranged for Millay to meet with Job Corps representatives again on
Job Corps’s Bangor campus on July 27, 2010.53 Brady wrote in her case notes that

45
46
47
48
49
50
51
52
53

Id.
The name of Millay’s sister is not found in the record. See Hr’g Tr. 43, 70.
See Brady Case Notes, 8/3/10, 1; Hr’g Tr. 81.
Hr’g Tr. 81.
Dep’t Ex. 3 at 5 (“July 22, 2010 IPE”).
Brady Case Notes, 8/3/10, 1.
Id. at 8/3/2010, 2.
Id. at 8/3/2010, 1.
Id. at 7/22/2010, 1.

7

the purpose of the meeting would be to “cover questions, [to go through a] check list
of what needs to happen, what’s good, what might not be good in terms of
environment and accessibility,” and to allow Job Corps to “perform[ ] [its]
admissions process.”54 The entry indicated that Jones would accompany Millay to
the meeting, but that Brady would not be able to attend.55 Although there is no case
note describing the July 27, 2010 meeting in detail, Brady refers to it in a later note
and gives the impression that Kunz, Jones, and Millay decided at this meeting that
Millay would enroll in Job Corps as a commuter.56 Millay’s mother also testified
about a July 2010 meeting with Kunz:
Kunz . . . said he was an advocate for Yohannes to come but only as a
commuter student. . . . [W]e were asking why is admissions taking so
long. . . . Kunz said that we have a lot of people who are very nervous
about having him on campus and we will not have him in the dorm.
There are people who are even nervous about him being here in the
day time. And I said well I’m not nervous about him being there in the
day time. I mean he’s going to be fine. There will be a lot of people
around. He said yes but we are not going to accept him as a residential
student.57
By the last week of August, with the school year nearly underway, Millay’s
admissions status at Job Corps was still in doubt.58 On August 25, 2010, Brady
wrote in her case notes that she and Jones had been “having conversations with Job
Id.
Id.
56
The case notes entry describing a September 23, 2010 meeting with Brady, Millay and
Millay’s mother states:
54
55

[Millay’s mother] stated repeatedly that the decision was made that [Millay] would
be a commuter student (the decision made by Jeff Jones/DBVI and Sam Kunz/Job
Corps and herself—I was not present at the meeting she talked about) and that I
could not disregard that decision and force Johannes to live on campus.
Id. at 9/23/10, 2; see also Hr’g Tr. 23.
57
Hr’g Tr. 77.
58
Brady Case Notes, 8/25/10, 1.

8

Corps staff regarding their concerns about having [Millay] as a student,” and Lynn
Creger, Job Corps’s human resources coordinator, told Brady that “‘some [Job
Corps] staff [are] VERY resistant to the idea that a visually impaired person can do
ANYTHING.’”59 Brady agreed to give a presentation at a September 2, 2010 Job
Corps staff meeting to allay their concerns, along with a vision rehabilitation
therapist and an orientation and movement specialist, but the record does not
include any description of this meeting.60
C.

Millay’s Admission Into Job Corps
On September 23, 2010, Brady wrote in her case notes that Job Corps had

accepted Millay into its culinary arts program and given him a start date of
September 27, 2010, but the entry does not indicate when Millay’s acceptance
occurred and the record contains no written offer of admission.61
D.

The DBVI Rejects Millay’s Request for Travel Reimbursements
Beginning in mid-September of 2010, Millay renewed his inquiries into

whether the DBVI would reimburse him for his travel costs.62 The Millay family
plan was for Millay and Millay’s sister to attend the Job Corps classes together,
with Millay’s sister ferrying the two of them between Surry and Bangor.63 Brady
scheduled a September 23, 2010 meeting with Millay and Millay’s mother to discuss
the issue.64

59
60
61
62
63
64

Id.
Id.
Id. at 9/23/10, 1; see also id. at 8/25/10, 1; id. at 9/15/10, 1.
Id. at 9/15/10, 1.
See id.; id. at 8/3/10, 1; Hr’g Tr. 81.
See Brady Case Notes, 9/15/10, 1; id. at 9/23/10, 1.

9

At that meeting, Brady informed Millay and Millay’s mother that the DBVI
would not reimburse Millay for any of his travel expenses. Brady described the
meeting in her case notes:
Johannes and I talked about his request for travel funding. I informed
him that I could not justify use of funds for him to travel daily when he
has the option to stay on campus full time at no cost. I explained that
the purpose of DBVI is to assist him in accomplishing his goals by
removing or adapting . . . disability related barriers. The Job Corps
program has on campus housing and encourages the students to stay
on campus in order to get the fullest benefit from their program. . . . I
explained that Johannes has the right to choose to stay where ever he
wants, but that unless that choice is directly related to accommodating
his disability it would not be a cost that DBVI would fund.65
Brady testified that she based her decision on Section 9 of the DBVI’s Rules
Governing Vocational Rehabilitation Services for Individuals Who are Blind
or Visually Impaired (the “2007 DBVI VRS Rules”),66 which she understood
to require her “to find the most cost-effective way to provide training” and to
approve travel reimbursements only if “transportation . . . [is] necessary to
enable the applicant or eligible individual to participate in the Voc Rehab
services and achieve [an] employment outcome by the most cost-effective
means possible.”67 Brady’s case notes indicate that the September 23, 2010
meeting ended acrimoniously, with Millay’s mother arguing that Brady could
not substitute her decision that Millay be a residential student over the

Id. at 9/23/10, 1.
Def.’s Ex. 4. The Code of Maine Rules sections that make up the current DBVI VRS Rules,
available on LexisNexis at 12-150-101 Me. Code. R. §§ 1-10 (LexisNexis 2013), incorporate
amendments from January 15, 2013, after the AHO’s decision in this case was handed down and
after Millay completed the Job Corps program. Defendant’s Exhibit 4 reproduces the rules as they
existed from October 27, 2007 until January 15, 2013. Citations to the rules refer to the copy of the
rules in that exhibit, as they are the version of the rules that govern Millay’s case.
67
Hr’g Tr. 20; 2007 DBVI VRS Rules § 9(13)(B).
65
66

10

decision of Kunz and Jones that Millay be a commuter student. Millay’s
mother also strongly asserted her opinion that Millay would not be safe in
Job Corps’s dorms, telling Brady that Job Corps staff had warned her “there
are violent students at Job Corps” and it would be dangerous for Millay to
even walk the campus’s hallways by himself.68
Without the DBVI’s financial support for his travel costs, Millay and his
sister decided to defer enrolling in the Job Corps program.69
E.

Confusion about Millay’s Status at Job Corps
Brady and Jones met with Job Corps personnel on October 27, 2010 to

discuss Millay’s situation.70 At the meeting, Job Corps administrative services
director Barbara Landry told Brady “that it was a surprise to her that Johannes
was considering [staying] in the dorms,” “that she had never been informed that
Johannes would live on campus, that she had understood he would be a commuter
student only, and that she felt that Job Corps needed to have certain things in place
before an on-campus admissions could be considered.”71 Brady’s notes further reflect
that, Job Corps “staff expressed concerns regarding liability for possible injury in
the dorm setting.”72 Although the DBVI attempted to convince Job Corps personnel
to accept Millay as an on-campus student, Landry remained unconvinced and
refused to move forward without a “memorandum of understanding” regarding who

68
69
70
71
72

Brady Case Notes, 9/23/10, 2-3.
Id. at 11/1/10, 1; Hr’g Tr. 81.
Brady Case Notes, 11/1/10, 1-3.
Id. at 11/1/10, 1.
Id.

11

was to provide necessary adaptations for Millay. Brady’s notes indicate that Landry
stated that:
[We] cannot let a student in [to Job Corps] not knowing if [we] may
subsequently need to spend unreasonable amounts of money so that
the student can actually participate in the program . . . [.] [F]unding is
limited everywhere and [we] can’t afford to take risks.73
Sometime around December 3, 2010, Brady called Landry to ask her to send
the DBVI an official notice of Millay’s admission into Job Corps’s culinary arts
program.74 Landry declined, informing Brady that Job Corps’s concerns remained
and that she could not move forward on Millay’s admission without the
memorandum of understanding she had requested earlier.75
Millay’s mother also testified that into October and November of 2010, Job
Corps was not willing to admit Millay as a residential student because of concerns
about his safety on campus:
The Job Corp itself expressed many concerns to me . . . and to
Yohannes that they did not believe it was safe. . . . Yohannes’[s]
admission took more than ten months. It took more than ten months
because as recently as October and November [of 2010] Job Corps
personnel were telling Yohannes, me and [the DBVI] that they were
not satisfied that he could be safe on campus.76
F.

Millay Challenges the DBVI’s Denial of Travel Reimbursement
Expenses
On November 19, 2010, Millay formally requested a due process hearing to

challenge Brady’s denial of his request for travel reimbursement expenses.77 In her

73
74
75
76
77

See id. at 11/1/10, 2; id. at 12/3/2010, 2; Hr’g Tr. 82.
Brady Case Notes, 12/3/10, 2.
Id.
Hr’g Tr. 77.
Hr’g Officer Ex. 1.

12

case notes following a meeting with her supervisors, Brady wrote her justifications
for the denial. She cited four reasons to support the decision:
1.
The Job Corps program provides on campus housing for all
students at no charge, with a small stippend [sic] for living expensed
[sic] given each week. There is no disability related reason that
Johannes could not live on-campus.
2.
Attendance is a highly important factor for students attending
the Job Corps program. It is set up to reflect a real-world job, if the
student misses class or is late for classes this is grounds for dismissal
from the program. I am very concerned that if Johannes commutes
daily from Blue Hill this will effectively ensure failure due to
inevitable transportation/weather related problems.
3.
At the time of denial, my understanding was that Johannes’[s]
sister was also going to be enrolled in the program and also planned
to live at home, so would be commuting to and from Bangor daily
whether Johannes was in the car or not. Transporting Johannes
would not create an additional cost to her. I felt that it was an
unreasonable request to have DBVI pay a third party for an existing
ongoing cost.
4.
Also, as students each would be receiving a small travel
stippend [sic] from Job Corps. This funding combined would likely
cover most of the costs of the commute and should be used
accordingly. (The exact amount of this stippend [sic] was never
disclosed.)78
G.

Dr. Gaffney’s Evaluation of Millay
On January 4 and 14, 2011, Millay met with licensed clinical psychologist

Thomas J. Gaffney, who performed a detailed clinical assessment of Millay’s mental
health.79 On January 24, 2011, Dr. Gaffney sent a letter to the DBVI documenting
Millay’s background and resulting psychological struggles.80 The letter begins by
detailing some of Millay’s recurring problems: that he is a “light sleeper,” that
“[e]ven a little noise can startle him, frighten him[,] and make it difficult to return

78
79
80

Brady Case Notes, 12/3/10, 1.
Id.
Id.

13

to sleep,” that he “is not comfortable staying in a room with people he does not
know,” and that he “worries a great deal about people stealing his belongings.”81 Dr.
Gaffney later concludes that Millay’s fears “seem[ ] to have their root in the
traumatic experiences . . . he endured from the time he was three until he was five
years of age.”82 Ultimately, Dr. Gaffney concludes that Millay “presents what
appear[ ] to be very clear symptoms of Post Traumatic Stress Disorder” (“PTSD”),
but recommends a follow-up clinical assessment.83 Regarding Job Corps, Gaffney
explains that Millay “seems to be trying to avoid going into dorm life . . . as an
attempt to limit the arousal of recollections of his trauma” and concludes that “[t]o
ask him, at this time, to live in the dorm . . . is simply too much to ask of him
emotionally.”84
H.

Millay Begins Classes at Job Corps
Millay finally began classes at Job Corps as a commuter student in February

of 2011.85 It is not clear from the record what changed to allow Millay to begin his
coursework.
By this point, Millay’s sister had begun a different job-training program and
started working part-time, so she was no longer available to drive Millay back and
forth

to

Bangor.86

Instead,

Millay’s

mother

assumed

the

chauffeuring

Id.
Gaffney Letter 2-3.
83
Id. at 3-4.
84
Id. at 4.
85
Compare Hr’g Tr. 24 (Brady’s testimony that Millay was in the fifth week of the program on
April 4, 2011) with Hr’g Tr. 55 (Millay’s testimony that he was in the seventh week of the program
on April 4, 2011).
86
Hr’g Tr. 81.
81
82

14

responsibilities.87 Because of her responsibilities to a severely disabled daughter,
Millay’s mother often made two round trips per day.88 Millay was required to cover
the entire cost of his commute pending the outcome of his appeal to the AHO.89
During Millay's first four weeks of class, he was tardy four times, though
never by more than a couple minutes.90 He also received positive critiques from his
Job Corps instructors, who noted that he “displayed an excellent attitude,” was “on
time, in uniform, and ready for class,” and was “engaged and professional.”91
I.

Millay’s Due Process Hearing
On February 28, 2011, over a month before his due process hearing, Millay

sent a letter to the Office of Administrative Hearings of Maine’s Department of
Health and Human Services requesting that subpoenas be issued to twelve
individuals, including Sam Kunz and Kristin Wiggins from Job Corps and Dr.
Gaffney.92 On March 3, 2011, Assistant Attorney General (“AAG”) Elizabeth
Wyman, who represented the DBVI, objected to the issuance of subpoenas to two of
Millay’s proposed witnesses, but offered no objection to subpoenaing Kunz or
Wiggins. The same day, chief administrative hearing officer James D. Bivins wrote
to inform Millay that he could not approve the subpoena requests unless Millay
provided information about what each witness’s testimony would be and why their

Id. at 51-52; 80-81.
Id. at 80-81.
89
Pre-Hr’g Conference Tr. 16, 35. The transcript of Millay’s January 31, 2011 pre-hearing
conference appears in the administrative record directly after the transcript of the due process
hearing.
90
Hr’g Tr. 24.
91
Id. at 25; Claimant’s Ex. 4 at 1-2.
92
Hr’g Officer Ex. 8.
87
88

15

testimony would be relevant.93 Chief AHO Bivins also informed Millay that he
would forward a copy of Millay’s subpoena request to the AHO hearing his case and
to the DBVI.94 The record contains no response from Millay, and it appears no
subpoenas were ever issued. On March 31, 2011, an intern from the Disability
Rights Center sent an e-mail to the Office of Administrative Hearings indicating
that Dr. Gaffney would not be available to testify on April 4, 2011 and requesting
that Millay’s case be held open after the close of the hearing to allow Dr. Gaffney to
testify by telephone later in the week.95 A DBVI employee responded that the AHO
had decided to rule on the matter at the April 4, 2011 hearing.96
AHO Hugh Hooper conducted Millay’s due process hearing on April 4, 2011.97
An intern from the Disability Rights Center presented on Millay’s behalf, under the
supervision of attorney Peter Rice, while AAG Wyman presented for the DBVI.98
Each side offered testimony from two witnesses: the DBVI called Brady and Jones,
while Millay testified and also called his mother.99 Several pieces of evidence were
entered into the administrative record as well, including correspondence
demonstrating the procedural history of Millay’s case, Brady’s extensive
contemporaneous case notes documenting her interactions with Millay, Millay’s

93
94
95
96
97
98
99

Hr’g Officer Ex. 9.
Id.
Claimant Ex. 1 at 2.
Id. at 1.
Hr’g Officer Ex. 11; Hr’g Tr. 1.
Hr’g Tr. 1.
Id. at 10, 31, 41, 70.

16

July 22, 2010 IPE, Millay’s recent Job Corps evaluations, and DBVI regulations and
procedural directives.100
Much of the substance of the witnesses’ testimony and the evidence entered
into the record is summarized and considered above. Additional evidence concerning
Millay’s PTSD was also admitted.101 At the end of the hearing, Millay was allowed
to enter into evidence the five-page letter Dr. Gaffney wrote to the DBVI on January
24, 2011, documenting Millay’s ongoing struggles with PTSD and recommending
against requiring Millay to live on Job Corps’s campus.102
J.

The AHO’s Decision
On May 6, 2011, the AHO issued a written decision, finding for the DBVI.

The decision is based entirely on the AHO’s application of the 2007 DBVI VRS
Rules and cites no other sources of law. It first finds that there is “no doubt” that
“the most cost-effective means” for Millay to take classes at Job Corps is for him to
live on Job Corps’s Bangor campus.103 Next, the opinion credits Millay’s stated
reasons for preferring to attend Job Corps as a commuter, but finds that commuting
was “his choice” and that travel reimbursements were not “necessary” for Millay to
achieve his employment goal.104 The decision also credits the DBVI’s “non-financial”
reason for declining Millay’s request for travel reimbursements: that living on
campus would allow Millay a valuable opportunity to gain independent living
Id. at 7-9, 65-69, see also Hr’g Officer Exs. 1-11 (documenting procedural history of case);
Dep’t Ex. 3 (same); Claimant Exs. 1-2, 6 (same); Dep’t Ex. 1 (Brady’s case notes); Dep’t Ex. 2
(Millay’s July 22, 2010 IPE); Claimant Ex. 4 (Millay’s Job Corps student evaluations); Dep’t Ex. 4
(DBVI regulations); Claimant Ex. 3 (DBVI procedural directive).
101
Hr’g Tr. 47, 74.
102
Id. at 87-89; Gaffney Letter 1.
103
Admin. Hr’g Decision 4.
104
Id. at 4-5.
100

17

skills.105 Finally, the decision effectively dismisses Dr. Gaffney’s letter, noting that
it seemed to be written from “an advocate’s perspective rather than from an
objective professional’s perspective” and this “tend[ed] to limit the weight” it was
due.106 In the decision’s conclusion, the AHO summarizes his reasoning as follows:
[A] [d]ecision in this matter must be based solely on the governing
rules. Those rules are clear in that in order for the [DBVI] to pay
transportation costs for Mr. Millay it must be necessary for him to
incur travel expenses to complete his Job Corp[s] training. That simply
is not the case here. While he has the right to commute, and his
reasons for choosing to commute are understood, Mr. Millay can
complete his Job Corps training by living on campus at no additional
cost to the Division.107
K.

Millay’s Graduation from Job Corps
Notwithstanding the AHO’s decision, Millay continued to attend the Job

Corps culinary arts program.108 Millay graduated from the program in April of
2012.109
PROCEDURAL HISTORY
On November 15, 2011, Millay filed a complaint (ECF No. 1) against the
DBVI in this Court, claiming unlawful discrimination under the Maine Human
Rights Act, the Americans with Disabilities Act, and Title V of the Rehabilitation
Act. The DBVI responded by filing a motion to dismiss (ECF No. 7). On May 5,
2012, the Magistrate Judge issued a recommended decision (ECF No. 12)

Id. at 5.
Id.
107
Id. at 5.
108
Pl.’s Br. Ex. 1(a) (ECF No. 51-1).
109
Id. An order issued by the Magistrate Judge (Kravchuk, J.) on April 2, 2013 granted Millay
permission to supplement the administrative record in this case with the Job Corps Certificates,
which document his graduation. Order Re: Pl.’s Mot. to Supplement the R. (ECF No. 50).
105
106

18

concluding that the Court should dismiss all the Plaintiff’s discrimination claims,
but that Millay was likely entitled to bring an appeal of the AHO’s decision under
Title I of the Rehabilitation Act. Neither party objected to the Magistrate Judge’s
recommended decision. Report of Telephone Conference and Order 1 (ECF No. 24).
Millay then moved for leave to amend his complaint (ECF No. 26) in order to
withdraw his earlier claims and instead bring an appeal of the AHO’s decision. The
DBVI opposed the motion (ECF No. 29), maintaining that Millay’s appeal was timebarred and that the relief Millay was requesting was unavailable under the
Eleventh Amendment. The Magistrate Judge issued a recommended decision on
September 21, 2012 (ECF No. 31), concluding that Millay’s claims were not timebarred and that he was entitled to seek injunctive relief and equitable
reimbursement notwithstanding the Eleventh Amendment. On December 5, 2012,
this Court adopted the Magistrate Judge’s recommendation (ECF No. 35). The
following day, Millay filed his second amended complaint (ECF No. 36), the
complaint currently before the Court. Millay seeks to have the Court reverse the
AHO’s affirmation of the DBVI’s denial of his request for travel reimbursements
and to award him injunctive relief, equitable reimbursement, prejudgment interest
and costs, and any other appropriate relief available under Title I of the
Rehabilitation Act.
STATUTORY AND REGULATORY BACKGROUND
Title I grants states federal funding to allow them to provide disabled
individuals with “vocational rehabilitation services.” See 29 U.S.C. §§ 720(a)-(b),
19

723(a). To be eligible to receive grants, a state must submit a plan to the
commissioner of the federal government’s Rehabilitation Services Administration
outlining how it will develop “individualized plan[s] for employment,” or IPEs, for
disabled individuals living in its borders. 29 U.S.C. § 721(a)(9)(A). This plan must
also provide assurances that the state will provide the services called for by its
clients’ IPEs. 29 U.S.C. § 721(a)(9)(B). If the Rehabilitation Services Administration
commissioner approves a state’s plan, federal funding is available for about fourfifths of the cost of providing vocational rehabilitation services. 29 U.S.C.
§§ 705(14), 721(a)(3), 730. State and local agencies pick up the rest of the tab,
though the total amount of federal funding a state can receive each year is capped.
29 U.S.C. §§ 705(14), 721(a)(3), 730.
Under Title I, an individual is eligible to receive vocational rehabilitation
services if he or she qualifies as an “individual with a disability” and “requires
vocational rehabilitation services to prepare for, secure, retain, or regain
employment.” 29 U.S.C. § 722(a)(1). A state that participates in Title I’s grant
program does not need to accept all eligible individuals, but can instead establish
criteria to accept only those with the most serious needs. 29 U.S.C. § 721(a)(5).
However, once a state agrees to provide a specific individual vocational
rehabilitation services using Title I funds, its discretion narrows: it must then
provide that individual with the full spectrum of services delineated in Title I.
Schornstein v. N.J. Div. of Vocational Rehab. Servs., 519 F. Supp. 773, 780 (D.N.J.
1981).

20

Title I prescribes a number of specific procedures for the development of an
IPE. For instance, Title I requires the responsible state agency to “develop[ ]” and
“implement[ ]” an IPE “in a manner that affords eligible individuals with the
opportunity to exercise informed choice” in choosing: (1) “an employment outcome”;
(2) “the specific vocational rehabilitation services to be provided under the plan”; (3)
“the entity that will provide the vocational rehabilitation services”; and (4) “the
methods used to procure the services.” 29 U.S.C. § 722(b)(2)(B). Title I mandates
that the IPE be reduced to a “written document” that is “agreed to, and signed by”
the eligible disabled individual or a representative and “approved and signed by a
qualified vocational rehabilitation counselor employed” by the responsible state
agency. 29 U.S.C. § 722(b)(2)(A), (C). And Title I requires that this document
include, among other things, “a description of the specific employment outcome that
is chosen by the eligible individual,” “a description of the specific vocational
rehabilitation services that are . . . needed to achieve the employment outcome,” and
“the terms and conditions of the [IPE], including, as appropriate,” the
responsibilities of the state agency for facilitating the services. 29 U.S.C.
§ 722(b)(3)(A), (B), (E).
Title I also requires participating states to allow individuals to challenge
determinations by state agents regarding the provision of vocational rehabilitation
services in a “due process hearing” conducted by an “impartial hearing officer.” 29
U.S.C. § 722(c)(5). Title I provides that the officer presiding over this hearing must
reach his decision by looking to the State’s rehabilitation plan, the substantive

21

provisions of Title I, and applicable state regulations. Id. An individual dissatisfied
with the hearing officer’s decision—or an agency’s subsequent administrative
review of the decision, if there is one—may challenge it by bringing a civil action in
either state or federal court. 29 U.S.C. § 722(c)(5)(J).
The State of Maine participates in the grant program established by Title I.
The DBVI—a division of the Bureau of Rehabilitation, which is part of the Maine
Department of Labor—is the state agency responsible for providing vocational
rehabilitation services to blind individuals in Maine and promulgating rules to
ensure they are provided fairly. 2007 DBVI VRS Rules § 1. The Rules supplement
the relevant procedural provisions in Title I.
STANDARD OF REVIEW
Section 722(c)(5)(J) provides for federal district court review of the results of
due process hearings conducted by state AHOs under Title I of the Rehabilitation
Act. 29 U.S.C. § 722(c)(5)(J). In conducting such a review, the Court “shall grant
such relief as [it] determines to be appropriate” based on the “preponderance of the
evidence.” 29 U.S.C. 722(c)(5)(J)(ii)(III).
The First Circuit has never discussed how district courts should apply
§ 722(c)(5)(J)’s standard of review. However, other courts considering the issue have
looked to cases interpreting an analogous provision in the Individuals with
Disabilities Education Act (the “IDEA”),110 “given that the text and structure of [the

Under the IDEA, states which receive certain federal funds must provide all age-eligible
children a “free appropriate public education.” Lessard v. Wilton-Lyndeborough Coop. Sch. Dist., 518
F.3d 18, 23 (1st Cir. 2008).
110

22

judicial review provisions of the IDEA and Title I] are virtually identical.” Reaves v.
Mo. Dep’t of Elementary and Secondary Educ., 422 F.3d 675, 681 (8th Cir. 2005)
(applying the IDEA’s standard of review in a Rehabilitation Act case); Wasser v.
N.Y. State Office of Vocational and Educ. Servs. for Individuals with Disabilities,
602 F.3d 476 (2nd Cir. 2010) (same). As the reasoning these courts employ is
persuasive and neither party disputes the issue, the Court will apply the modified
de novo standard of review developed under the IDEA to the Plaintiff’s appeal of the
AHO’s decision.
The First Circuit described the IDEA standard of review in Sebastian M. v.
King Philip Regional School District, 685 F.3d 79 (1st Cir. 2012):
A district court reviews the administrative record, which may be
supplemented by additional evidence from the parties, and makes an
independent ruling based on the preponderance of the evidence.
However, that independence is tempered by the requirement that the
court give due weight to the hearing officer's findings. As a result, a
district court's review falls somewhere between the highly deferential
clear-error standard and the non-deferential de novo standard. We
have characterized this intermediate level of review as one of involved
oversight.
Sebastian M., 685 F.3d at 84 (internal block quoting removed) (quoting D.B. ex rel.
Elizabeth B. v. Esposito, 675 F.3d 26, 35-36 (1st Cir. 2012)).
Essentially, the district court reviews the administrative record as if it were
“‘conduct[ing] a bench trial based on a stipulated record,’” except that it also gives
“due deference to the findings of the administrative hearing officer,” particularly to
findings that are reasoned persuasively or fall within the unique policy expertise of
the agency. Sebastian M., 685 F.3d at 85 (quoting Ojai Unified Sch. Dist. v.
Jackson, 4 F.3d 1467, 1471 (9th Cir. 1993); see also Bd. of Educ. of the Hendrick
23

Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 207-208 (1982)
(“[C]ourts must be careful to avoid imposing their view of preferable educational
methods upon the States. . . . [O]nce a court determines that the requirements of
the Act have been met, questions of methodology are for resolution by the States.”);
Sch. Union No. 37 v. Ms. C., 518 F.3d 31, 35 (1st Cir. 2008) (the reviewing district
court must “exercise[ ] its discretion, informed by the record and by the expertise of
the administrative agency and the [local] officials, as to how much deference to
afford the administrative proceedings”); Lenn v. Portland Sch. Comm., 998 F.2d
1083, 1087 (1st Cir. 1993) (“[T]he persuasiveness of a particular administrative
finding, or the lack thereof” determines whether the district court should show it
deference). Additionally, the party challenging a hearing officer’s decision carries
the burden of proof throughout its review by the Court. D.B., 675 F.3d at 35 & n.3.
A district court should defer to a hearing officer’s determination such as the
weight to be given expert testimony that involves analyzing fine-tuned matters
within the AHO’s area of expertise, see Sebastian M., 685 F.3d at 86, but where the
AHO fails to address important evidence in the record, deference may not be
appropriate. See Ms. C., 518 F.3d at 33-34.
DISCUSSION
A.

“Necessary” Services
1.

The Legal Standard

The main substantive standard governing the sufficiency of the vocational
rehabilitation services a state agency provides an individual under Title I comes

24

from the statutory definition of “vocational rehabilitation services” itself. The
Rehabilitation Act defines “vocational rehabilitation services” as follows:
[A]ny services described in an [IPE] necessary to assist an individual
with a disability in preparing for, securing, retaining, or regaining an
employment outcome that is consistent with the strengths, priorities,
resources, concerns, abilities, capabilities, interests, and informed
choice of the individual . . . .
29 U.S.C. § 723(a) (emphasis added). Though Title I does not define the term
“necessary,” the core legal issue in a case like this is whether the particular service
the state agency refused to provide was “necessary” to achieve the employment
outcome identified in the individual’s IPE. See Yochim v. Gargano, 882 F. Supp. 2d
1068, 1080 (S.D. Ind. 2012) (“[N]ecessity—not superiority—of services is the
touchstone of Title I . . . .”); Carrigan v. N.Y. State Educ. Dep’t, 485 F. Supp. 2d 131,
138-42 (N.D.N.Y. 2007) (analyzing Title I case under “necessity” standard).
Eighteen subsections appended to the statutory definition of “vocational
rehabilitation services” provide specific examples of programming that may qualify
as “necessary.” 29 U.S.C. § 723(a)(1)-(18). Among these subsections is § 723(a)(8),
which lists “transportation . . . that is provided in connection with the provision of
any other service described in this section and needed by the individual to achieve
an employment outcome,” and § 723(a)(17), which lists “services to the family of an
individual with a disability necessary to assist the individual to achieve an
employment outcome.” 29 U.S.C. § 723(a)(8), (17).
Guidance is also found in federal regulations promulgated under the
authority of Title I. These regulations provide that a state agency providing
vocational rehabilitation services “must ensure” that “travel and related expenses
25

that are necessary to enable an applicant or eligible individual to participate in a
vocational rehabilitation service” are “available to assist [a disabled client] in
preparing for . . . an employment outcome . . . .” 34 C.F.R. §§ 361.48, 361.48(h),
361.5(b)(57). The regulations include illustrations of transportation expenses that
would qualify:
Example 1: Travel and related expenses for a personal care attendant
or aide if the services of that person are necessary to enable the
applicant or eligible individual to travel to participate in any
vocational rehabilitation service.
Example 2: The purchase and repair of vehicles, including vans, but
not the modification of these vehicles . . . .
34 C.F.R. § 361.5(b)(57)(i). The regulations caution, however, that these examples
“are not intended to substitute for individual counselor judgment.” Id.
The 2007 DBVI VRS Rules provide further governing standards. Section 9 of
the Rules mandates that the DBVI “provide . . . any goods or services determined
necessary for the individual to achieve an employment outcome.” 2007 DBVI VRS
Rules § 9. But Section 9 also places expense-based limits on how the DBVI should
furnish aid, requiring that “[s]ervices that are of sufficient quality . . . be provided
as cost effectively as possible to meet the individual’s needs.” Id. Like Title I and the
federal regulations, Section 9 discusses transportation specifically:
Supportive [s]ervices [m]ay [i]nclude . . . . [t]ransportation, including
travel and related expenses that are necessary to enable an applicant
or eligible individual to participate in a vocational rehabilitation
service and achieve an employment outcome by the most cost-effective
means possible.
2007 DBVI VRS Rules § 9(13)(B).

26

Title I does not discuss what role expense should play in how state agencies
provide vocational rehabilitation services. In Buchanan v. Ives, 793 F. Supp. 361 (D.
Me. 1991), this District provided some clarification. First, a state agency may not
“apply[ ] a cost efficiency analysis to the determination of a client’s goals and
needs.” Buchanan, 793 F. Supp. at 364. However, “once a client’s goals and needs
have been identified,” the state may “consider cost in providing services to [the
client] in an efficient manner . . . .” Id.; see also Yochim, 882 F. Supp. 2d at 1079-80
(state agency did not violate Title I when it refused to send a client to out-of-state
center for the blind where local institutions could provide sufficient training at
lower cost); Hoitt v. Dep’t of Rehab., 207 Cal. App. 4th 513 (Cal. Ct. App. 2012)
(state agency did not violate Title I when it declined to reimburse client the full cost
of attending a private school where less expensive program was available).
2.

The Parties’ Positions

The Plaintiff contends that the AHO’s analysis of the question of necessity
includes three errors, each of which requires the Court to reverse its decision. First,
the Plaintiff contends that “there is no evidence . . . that the Penobscot Job Corps
was prepared to accept John Millay as a resident student,” so “it was absolutely
necessary for Mr. Millay to reside at home and to commute to his classes.” Pl.’s Br.
12. Second, the Plaintiff argues that even if Job Corps was prepared to accept
Millay as a residential student, commuting was still necessary, given Millay’s
difficulty living in the dorms at UMPI and his ongoing struggle with PTSD. Pl.’s Br.
12. In a similar vein, the Plaintiff suggests the DBVI’s decision is at odds with
language in § 723(a) which specifies that vocational rehabilitation services must be
27

provided in a manner “consistent with the informed choice of the individual.” 29
U.S.C § 723(a); Pl.’s Br. 10 -11. Third, the Plaintiff argues that the AHO engaged in
an erroneous analysis of cost-effectiveness by assuming that the on-site living
arrangements available at Job Corps were “free.” Pl.’s Br. 13. The Plaintiff contends
that the appropriate cost-effectiveness analysis would take into account the full
expenditure of government resources required to provide a particular vocational
rehabilitation service, whether incurred by the state or the federal government. Pl.’s
Br. 13.
The Defendant disagrees with the Plaintiff’s assertion that Job Corps was not
prepared to have Millay live on campus. Def.’s Br. 13. The Defendant also argues
that the AHO correctly discounted concerns about Millay’s PTSD, given Dr.
Gaffney’s own admission that further evaluation of Millay’s mental condition was
still necessary and the bias demonstrated by his letter. Def.’s Br. 12-13. The
Defendant answers the Plaintiff’s “informed choice” argument by noting that this
District has made clear that a state agency’s “rehabilitation counselor must make
the final decision on eligibility and the scope of services provided” under Title I.
Buchanan, 793 F. Supp. at 366; Def.’s Br. 14; see also Yochim, 882 F. Supp. 2d at
1079. Finally, the Defendant contends that the AHO correctly based his costeffectiveness analysis on the expense that the DBVI would incur in providing Millay
with vocational rehabilitation services and correctly disregarded expenses borne
only by the federal government. Def.’s Br. 15.

28

3.

Applying the Standard

The Defendant does not dispute that Millay is disabled, that Millay’s July 22,
2010 IPE is valid, or that the IPE called for Millay to receive training in culinary
arts at Job Corps. Instead, the parties dispute whether it was Millay’s choice to
attend Job Corps as a commuter, as the Defendant asserts, or whether Job Corps
only accepted Millay into its program on the condition that he commute, as the
Plaintiff asserts.
Although Brady testified that Job Corps has “on campus housing available
for all students,” and she seemed to believe that Job Corps had agreed to accept
Millay as an on-campus student, the preponderance of the evidence, including her
case notes, indicates otherwise. See, e.g., Hr’g Tr. 17, 19.
Job Corps’s admissions counselor Sam Kunz made it clear to Brady from as
early as March of 2010 through September of 2010 that although he supported
Millay’s application, he had to convince his superiors that Job Corps should accept
Millay. Kunz appears to have been in agreement with the decision made by DBVI
education specialist Jones and Millay at their July 27, 2010 meeting that Millay
should begin Job Corps as a commuter student. Even Jones testified that the
decision reached was to start Millay as a commuter student and see if he could work
into becoming a residential student. Millay’s mother testified unequivocally that
Job Corps had accepted Millay strictly as a commuter student based on its concerns
that it could not guarantee Millay’s safety. Millay’s mother’s testimony on this point
is corroborated by Brady’s case notes.

29

Brady’s notes describe the struggle within Job Corps and between Job Corps
and the DBVI over whether Job Corps could accommodate a blind student. A clear
picture emerges from a careful reading of the case notes: Job Corps had not
accepted Millay as an on-campus student as of his September 27, 2010 start date.
Furthermore, Job Corps administrative services director Landry indicated in
October and December of 2010 that Job Corps would not even consider enrolling
Millay as a residential student until the DBVI and Job Corps had entered a
memorandum of understanding about costs associated with accommodating Millay.
When Brady asked for a letter of acceptance for Millay in December of 2010, Landry
refused to provide it. Although neither side called any of Job Corps’s employees to
testify, it was clearly Millay’s intention to do so. The omission is not fatal to Millay,
in large part due to the detailed record created by Brady in her case notes.
The AHO found that “it is not necessary for . . . Millay to commute” and that
“it is [Millay’s] choice to live at home,” but failed to support these conclusions with
citations to the record or persuasive reasoning. Admin. Hr’g Decision 4. More
troublingly, the AHO’s decision makes no mention of Brady’s case notes except to
report the bare fact that they were admitted into evidence. Brady’s case notes—
contemporaneous observations of the events in question,111 many of them recorded
before this litigation began and the battle lines between the parties were drawn—
are crucial. The Court would typically adopt an AHO’s determinations about the
credibility of live witnesses, especially where those determinations are based on

Brady testified that she creates her case notes by sitting down shortly after each meeting she
conducts with a client and writing a summary of the issues that were discussed. Hr’g Tr. 18.
111

30

observations of demeanor. See Goldstein v. Middendorf, 535 F.2d 1339, 1342 (1st
Cir. 1976). But here, where the AHO failed to analyze the testimony in light of
critical, reliable evidence discrediting one side’s version of the events, his
conclusions are entitled to less deference. See Cordero-Trejo v. Immigration and
Naturalization Serv., 40 F.3d 482, 487 (1st Cir. 1994); Ms. C. 518 F.3d at 33-34
(upholding district court’s reversal of administrative IDEA decision where AHO
failed to properly address key evidence in the record); cf. Sebastian M., 685 F.3d at
81, 85-86 (upholding district courts affirmation of administrative IDEA decision
where district court properly deferred to AHO’s determination about which side’s
expert testimony to credit given that it required AHO to draw on agency policy
expertise).
Giving both Brady’s case notes and the administrative hearing decision their
proper weight, the “preponderance of the evidence” supports a different conclusion
than that reached by the AHO: that, as of the fall of 2010 and early 2011, when the
DBVI rejected Millay’s request for travel expense reimbursement and the AHO
upheld its decision, Job Corps was prepared for Millay to attend its culinary arts
program as a commuter but not as a residential student.
It is possible, of course, that Millay’s resistance to living on campus was
communicated to Job Corps staff and influenced Job Corps’s decision not to admit
Millay as a residential student. On the other hand, it is also possible that Millay’s
resistance, in the first instance, was a result of information communicated to him
by Job Corps staff—that they were not sure that they could safely accommodate his

31

disability and that it might not be wise for someone so vulnerable to live among Job
Corps’s harder-edged students. Either way, the crucial fact remains the same: at
the time the DBVI rejected Millay’s request for travel reimbursement, the
preponderance of the evidence in the record indicates that Millay did not have the
“choice” to live on campus even if he wanted to, as Job Corps had by then made an
independent decision to admit him only as a commuter.
With that factual predicate settled, this becomes an easy case. Millay’s IPE
called for him to attend Job Corps’s culinary arts program. The only way Millay
could take advantage of the services called for by his IPE was to travel each day
from Surry to Bangor and back. Thus, this case can be distinguished from Title I
cases where clients sought to have the state provide money for expensive services
though cheaper options that satisfied their IPEs were readily available. Cf. Yochim,
882 F. Supp. at 1079-80; Hoitt, 207 Cal. App. 4th at 516-21, 525.
Under Title I and the federal and state regulations promulgated under its
authority, commuting was “necessary” for Millay to participate in the Job Corps
program called for in his IPE, and the DBVI was obligated to reimburse Millay for
his commuting expenses or provide him a more cost-effective way to get to and from
school. See, e.g., 29 U.S.C. § 723(a); 34 C.F.R. §§ 361.48, 361.48(h), 361.5(b)(57);
2007 DBVI VRS Rules § 9; Schornstein, 519 F. Supp. at 780. Accordingly, the
DBVI’s denial of Millay’s request for travel reimbursements was improper, and
Millay is entitled to relief from the AHO’s decision affirming that improper denial.

32

Because the Court decides this case on the basis of the Plaintiff’s first
argument, it need not address the more difficult questions of whether Millay’s
PTSD made it necessary for him to live at home rather than on Job Corps’s campus,
whether the DBVI ran afoul of Title I’s “informed choice” provisions, whether the
AHO committed reversible error by only considering the 2007 DBVI VRS Rules and
not the text of Rehabilitation Act and applicable federal regulations, and how to
properly analyze cost-effectiveness under Title I and the 2007 DBVI VRS Rules.
B.

Relief
Section 722(c)(5)(J) provides that a district court hearing an appeal of a state

agency’s final decision regarding the provision of vocational rehabilitation services
“shall grant such relief as the court determines to be appropriate.” 29 U.S.C.
§ 722(c)(5)(J)(ii)(III). The Plaintiff’s second amended complaint requests that the
Court order the Defendant to pay equitable reimbursement for the Plaintiff’s travel
expenses, award prejudgment interest and costs, enjoin the DBVI and its employees
from violating the Plaintiff’s rights under the Rehabilitation Act in the future, and
grant “such other and further relief as may be just and proper.” Second Am. Compl.
5.
The Plaintiff is entitled to equitable reimbursement equivalent to the amount
he would have received from the DBVI had it not rejected his request that it pay his
travel expenses. Millay v. Me. Dep’t of Labor, No. 1:11-CV-00438-NT, 2012 WL
6045775 (D. Me. Dec. 5, 2012) (Mag. J. Kravchuk’s recommended decision, also
available at ECF No. 31), adopted by Millay v. Me. Dep’t of Labor, No. 1:11-CV00438-NT, 2012 WL 6043964 (D. Me. Dec. 5, 2012) (also available at ECF No. 35)
33

(Eleventh Amendment does not bar granting equitable reimbursement under Title
I’s relief provision); see also Sch. Comm. of Town of Burlington v. Dep’t of Educ. of
Mass., 471 U.S. 359, 370-71 (1985) (holding that identically worded relief provision
in the IDEA empowered district court to grant equitable reimbursement to plaintiff
for “expenses that [the state] should have paid all along and would have borne in
the first instance had it developed a proper IEP”).
The evidence in the record about Millay’s travel expenses is both conflicting
and incomplete. Brady testified that Job Corps provides commuter students with a
daily travel stipend of up to $5.70 per day, but it is unclear whether Millay ever
received that stipend.112 Brady also gave a rough estimate of the daily cost of the
gas required for Millay’s commute, testifying that “if their vehicle gets twenty miles
per gallon and gas costs $4.00 bucks a gallon it would be $13.60.”113 However, the
exact basis for her calculations is not clear, particularly since she testified on direct
that Millay’s Surry home is 84 miles from Job Corps’s campus, but on cross that his
daily roundtrip would be just 68 miles.114 Millay’s mother testified that her car
“probably gets 20 miles per gallon” and that she spent “about 4-and-a-half hours a
day” driving Millay, because she needed to return home in the middle of each day to
take care of Millay’s disabled sister.115 Millay’s mother also testified that her costs
ran to about “$100, $120 a week . . . without wear and tear on the car, which is

112
113
114
115

Compare Hr’g Tr. 16 (Brady’s testimony) with Hr’g Tr. 93 (Millay’s mother’s testimony).
Hr’g Tr. 16-17.
Id. at 15, 27.
Id. at 80.

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pretty considerable.”116 And on cross, when the state’s attorney asked Millay’s
mother precisely how much money Millay was seeking from the DBVI, she
estimated her expenses were $30 a day, without including the value of her time.117
Finally, Millay entered into evidence a DBVI procedural directive which, provides
guidance regarding transportation expenses.118 The directive suggests that the
DBVI should reimburse clients for some car repairs, but does not make clear which
ones or what criteria to use to make the decision.119 And the directive provides no
guidance about how the DBVI should reimburse clients for wear and tear incurred
in traveling to and from the site where a vocational rehabilitation service is
provided.
Earlier in these proceedings, the Plaintiff requested the opportunity to
supplement the administrative record with a declaration from Millay’s mother
detailing Millay’s travel expenses. Pl.’s Mot. to Supp. the R. with Inc. Mem. 1-2
(ECF No. 46). The Defendant objected to the request, Def.’s Objection to Pl.’s Mot. to
Supp. the R. (ECF No. 47), and the Magistrate Judge denied the Plaintiff’s motion,
but only provisionally, noting that additional evidence “might prove appropriate at
a later date . . . if Millay prevails in this litigation.” Order Re: Pl.’s Mot. to Supp. the
R. 2 (ECF No. 50). As the Magistrate Judge explained, “it is unnecessary to cross
that bridge unless and until the court determines that the administrative hearing

116
117
118
119

Id. at 81.
Id. at 91-92.
Claimant Ex. 3 at 1.
Id. at 2, 4.

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officer erred in failing to award transportation expenses . . . .” Id. Given the Court’s
decision here, that time has now come.
As discussed above, Section 722(c)(5)(J) provides that a district court
reviewing a hearing officer’s determination on the administrative record “shall hear
additional evidence at the request of a party.” 29 U.S.C. § 722(c)(5)(J)(ii)(II). Though
the First Circuit has not construed this provision in Title I, it has interpreted nearly
identical language in the IDEA several times, first in Town of Burlington v.
Department of Education for the Commonwealth of Massachusetts, 736 F.2d 773 (1st
Cir. 1984). There, the First Circuit held that the use of the word “additional” in the
IDEA should be construed narrowly, to mean “supplemental.” Burlington, 736 F.2d
at 790. The court explained that decisions about whether to allow parties to
supplement the record “must be left to the discretion of the trial court,” but also
established criteria to constrain the exercise of that discretion. Id. at 791. On the
one hand, the court explained, the IDEA’s “additional evidence” provision “does not
authorize witnesses at trial to repeat or embellish their prior administrative
hearing testimony . . . .” Id. at 790. The court elaborated:
In ruling on motions for witnesses to testify, a court should weigh
heavily the important concerns of not allowing a party to undercut the
statutory role of administrative expertise, the unfairness involved in
one party's reserving its best evidence for trial, the reason the witness
did not testify at the administrative hearing, and the conservation of
judicial resources.
Id. at 791. Thus, Burlington established a rebuttable presumption that a witness
who testified at an IDEA administrative hearing may not offer further testimony
before the district court reviewing the AHO’s decision. Id. On the other hand, the
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court also offered a non-exhaustive list of situations where district courts should
allow a party to enter “additional evidence”:
The reasons for supplementation will vary; they might include gaps in
the administrative transcript owing to mechanical failure,
unavailability of a witness, an improper exclusion of evidence by the
administrative agency, and evidence concerning relevant events
occurring subsequent to the administrative hearing.
Id. at 790; see also Roland M. v. Concord Sch. Comm., 910 F.2d 983, 996-97 (1st Cir.
1990) (supplementing the record not allowed where a disabled student’s parents
held back retained experts’ testimony during administrative hearing for tactical
reasons and on appeal to federal district court moved to supplement the record with
experts’ testimony).
Here, the Plaintiff’s failure to introduce more evidence about his expenses at
the due process hearing is neither pernicious nor surprising. At the time the
hearing was held, Millay had only been taking classes at Job Corps for a number of
weeks. He could not present evidence regarding his April 2011 to April 2012
expenses, because that evidence—which concerns expenses incurred after the due
process hearing—did not yet exist. There is no suggestion that Millay withheld
evidence from the AHO in any strategic way, nor does the additional evidence
Millay offers deal with rehabilitational policy.
Because the Plaintiff has provided a “solid justification” for the additional
evidence he offers, Roland M., 910 F.2d at 996, he defeats Burlington’s rebuttable
presumption. See Burlington, 736 F.2d at 791. Accordingly, the Court now grants
the Plaintiff’s earlier motion to supplement the record as to travel expenses the
DBVI should have reimbursed. See Pihl v. Mass. Dep’t of Educ., 9 F.3d 184, 191 (1st
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Cir. 1993) (under the IDEA, district court may take additional evidence rather than
remand to an AHO where “further delay in . . . already protracted litigation would
serve no purpose”).
Neither party has briefed whether the Plaintiff is entitled to prejudgment
interest, injunctive relief, declaratory relief, or any additional equitable relief. The
Clerk is directed to schedule a conference of counsel to discuss what further
evidence and briefing may be required to resolve the outstanding issues in this case.
CONCLUSION
With due weight given to the AHO’s findings, the preponderance of the
evidence demonstrates that the DBVI erred in failing to reimburse the travel
expenses Millay incurred in traveling to and from Job Corps from February 2011
through April 2012. The AHO’s decision is therefore REVERSED. The Court
DEFERS RULING on the amount of expenses the DBVI must pay and whether
Millay is entitled to any further relief.

SO ORDERED.
/s/ Nancy Torresen
United States District Judge
Dated this 9th day of December, 2013.

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