BRUNS v. MAYHEW

Filing 19

ORDER dismissing without prejudice 12 Motion to Dismiss for Failure to State a Claim. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
HANS BRUNS,
Plaintiff,
v.

MARY MAYHEW, Commissioner,
Maine Department of Health and
Human Services,
Defendant.

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1:12-cv-00131-JAW

ORDER ON COMISSIONER’S MOTION TO DISMISS
Hans Bruns, on behalf of himself and a proposed class of Maine residents,
requests that the Court declare Public Law 2011, chapter 380, section KK-4
unconstitutional and grant a preliminary and permanent injunction enjoining Mary
Mayhew, the Commissioner of the Maine Department of Health and Human
Services, from enforcing the law and ordering her to restore MaineCare benefits to
Mr. Bruns and his proposed class. Mr. Bruns claims the Maine law violates the
Equal Protection Clause of the Fourteenth Amendment of the United States
Constitution because it discriminates against noncitizens in favor of citizens in the
administration of MaineCare benefits. The Commissioner moves to dismiss Mr.
Bruns’s Complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which
relief can be granted.

FED. R. CIV. P. 12(b)(6).

The Court dismisses without

prejudice the Commissioner’s motion to dismiss because the Commissioner’s

position is founded on a disagreement with factual allegations in Mr. Bruns’s
Complaint that the Court must accept as true.
I.

STATEMENT OF FACTS
A.

Procedural Background

On April 4, 2012, Mr. Bruns filed a class action complaint against
Commissioner Mayhew in her official capacity. Class Action Compl. for Declaratory
and Inj. Relief (ECF No. 1) (Compl.). On the same day, Mr. Bruns moved for class
certification, Pl.’s Mot. for Class Certification (ECF No. 4), and for a preliminary
injunction, Pl.’s Mot. for Prelim. Inj. (ECF No. 5). On May 11, 2012, Commissioner
Mayhew moved to dismiss Mr. Bruns’s Complaint pursuant to Rule 12(b)(6), Def.’s
Mot. to Dismiss (ECF No. 12) (Def.’s Mot.), and opposed Mr. Bruns’s motions for
class certification and preliminary injunction. Def.’s Opp’n to Pl.’s Mot. for Class
Certification (ECF No. 14); Def.’s Opp’n to Pl.’s Mot. for Prelim. Inj. (ECF No. 13).
On May 25, 2012, Mr. Bruns filed his opposition to Commissioner Mayhew’s
motion to dismiss. Pl.’s Opp’n to Def.’s Mot. to Dismiss (ECF No. 17) (Pl.’s Opp’n).
He also replied to Commissioner Mayhew’s response to his motions for class
certification and preliminary injunction.

Pl.’s Reply Mem. in Supp. of Class

Certification (ECF No. 15); Pl.’s Reply Mem. in Supp. of Prelim. Inj. (ECF No. 16).
On June 7, 2012, Commissioner Mayhew filed a reply in support of her motion to
dismiss. Def.’s Reply in Supp. of Mot. to Dismiss (ECF. No. 18) (Def.’s Reply).

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B.

The Allegations1
1.

Federal Medicaid and MaineCare Frameworks

Medicaid is a jointly-funded state and federal program that provides medical
assistance to low-income individuals. Compl. ¶ 23. In 1973, the Maine Legislature
enacted Aid to Needy Persons, Public Law 1973, chapter 790, codifying its decision
to provide Medicaid coverage to all qualified individuals regardless of their
immigration status and alienage. Id. The state of Maine’s Medicare program is
called MaineCare and Maine DHHS is responsible for administering MaineCare to
Maine residents. Id.
In 1996, Congress changed the eligibility requirements for federal Medicaid
with its enactment of the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 (PRWORA), Public Law No. 104-193, 110 Stat. 2105
(1996).

Id. ¶ 24.

The Act divided noncitizens into two groups for Medicaid

eligibility: qualified and non-qualified aliens. Id. Qualified aliens include lawful
permanent residents and certain other specified groups of individuals, such as
asylees and refugees. Id. PRWORA further divided qualified aliens into two groups
for Medicaid eligibility based upon the length of each alien’s residency in the United
States.

Id. The law generally made Medicaid benefits unavailable to qualified

aliens residing in the United States after August 22, 1996 until the aliens had
resided in the United States for at least five years with qualifying status.

Id.

In ruling on a motion to dismiss, a Court must take as true all well-pleaded facts in the complaint.
Schatz v. Republican State Leadership Comm.-Me. PAC, 669 F.3d 50, 55 (1st Cir. 2012). The Court
has therefore recited the well-pleaded facts as set forth in Mr. Bruns’s Complaint.
1

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Nevertheless, the law provided that these noncitizens could receive medical
assistance for care and services required to treat emergency medical conditions even
though they had not satisfied the residency requirement. Id. ¶ 25.
PRWORA also authorized states to decide whether to provide health benefit
services to Medicaid-ineligible noncitizens residing within their borders. Id. ¶ 26.
In response to PRWORA, the Maine Legislature voted unanimously to pass
Temporary Assistance to Needy Families (TANF), Public Law 1997, chapter 530,
section A-16, and to provide state-funded health benefit coverage to all legal
noncitizens “‘who would be eligible for the TANF or Medicaid programs but for their
status as aliens under PRWORA.’” Id. ¶ 27. However, in June 2011, the Maine
Legislature passed Public Law 2011, chapter 380, section KK-4, which terminated
health benefit coverage to Medicaid-ineligible aliens granted by the 1997 law. Id. ¶
3, 28.

DHHS implemented the new law through emergency rulemaking on

September 1, 2011, and it was permanently adopted effective December 5, 2011. Id.
2.

Mr. Bruns’s Medical Condition and His Loss of State
Health Care Coverage

Hans Bruns resides in Fort Fairfield, Maine. Id. ¶ 9. Mr. Bruns became a
United States lawful permanent resident on December 16, 2007. Id. ¶ 9, 29. He is
indigent and, because of his low income, cannot afford to pay for private health
insurance. Id. ¶ 29. On or about December 2010, Mr. Bruns began to receive
health insurance benefits through MaineCare. Id. ¶ 9, 29, 31. On September 1,
2011, DHHS sent form termination notices to approximately five hundred
noncitizens living in Maine, including Mr. Bruns, informing them that their
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MaineCare coverage was being reduced to emergency care only. Id. ¶ 3. The State
terminated Mr. Bruns’s benefits effective October 1, 2011. Id. ¶ 9, 31.
After experiencing pain on the right side of his face for more than a year and
seeking treatment for a mass on the right side of his neck, Mr. Bruns was diagnosed
in late 2011 or early 2012 with adenoid cystic carcinoma of the right parotid gland
and an apparent lesion in his lung. Id. ¶ 10, 30. Mr. Bruns experiences extreme
pain and suffering, which impacts his ability to sleep, hear, and swallow because of
the large cancerous tumor in his neck. Id. ¶ 1.
Without full MaineCare benefits, Mr. Bruns cannot afford the medical care
required to cure his condition, which includes services such as MRI imaging,
resection of the lesion, radiation, and chemotherapy. Id. ¶ 1, 10, 32. Emergency
care benefits under the State’s current MaineCare program cannot provide Mr.
Bruns with the necessary medical services to treat his condition. Id. ¶ 10. Absent
treatment, Mr. Bruns’s condition will continue to cause him extreme pain and may
ultimately result in his death. Id. ¶ 10, 30.
II.

PARTIES’ POSITIONS
A.

The Commissioner’s Motion to Dismiss

“[F]undamentally,” Commissioner Mayhew argues, “plaintiff’s claim fails for
the simple reason that the facts here do not make out a violation of the Equal
Protection Clause.” Def.’s Mot. at 2, 8. She claims that Mr. Bruns’s Complaint
should be dismissed primarily because: (1) the state cancelled a benefit that was
exclusively provided to noncitizens and (2) the disparate treatment of noncitizens is

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a result of federal, not state law. Id. Commissioner Mayhew concedes that the
state of Maine terminated a program that provided state benefits for aliens who
were ineligible for federal Medicaid. Id. However, because the State no longer
offers the state benefit at issue here to anyone, she asserts there has not been an
Equal Protection Clause violation. Id.
Pointing out that “the state medical assistance benefit at issue here is
not―and never was―available to United States citizens,” Commissioner Mayhew
argues that Mr. Bruns has failed to show that noncitizens and citizens were
“‘similarly situated ‘in all relevant respects.’” Id. at 9. She supports her position
with a series of cases from other jurisdictions where courts rejected noncitizens’
Equal Protection claims in similar circumstances.

Id. at 10-12.

Specifically,

Commissioner Mayhew highlights the similarities between this case and Pimentel v.
Dreyfus, 670 F.3d 1096 (9th Cir. 2012) and Hong Pham v. Starkowski, 16 A.3d 635
(Conn. 2011).

Id. at 10-11.

Commissioner Mayhew argues that “the weight of

authority confirms that Equal Protection is not violated by the elimination of a state
program that, like Maine’s, serves only aliens.” Id. at 12.
Next, Commissioner Mayhew contends that Mr. Bruns’s claim that he has
been selectively treated rests on “semantics.” Id. She asserts that by using the
term “MaineCare”, Mr. Bruns “hopes to obscure the distinction between the
Medicaid benefits administered by the State, for which federal law denies plaintiff
eligibility, and the state medical assistance benefits Maine previously offered to
Medicaid-ineligible aliens” so that he can be considered “similarly situated” to

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citizens receiving federal benefits. Id. at 13. Commissioner Mayhew insists that
Mr. Bruns never received the same MaineCare benefits provided to citizens. Id.
Instead, she explains that he received “state medical assistance benefits that were,
admittedly, often inaccurately referred to as ‘MaineCare’ benefits.” Id.
Analogizing the facts here to Pimentel, Commissioner Mayhew emphasizes
that the two medical programs in this case were created by two different
governments over thirty years apart and that Medicaid is a creature of federal law
whereas Maine’s medical assistance program for Medicaid-ineligible aliens arose
only from state law. Id. at 14-15. Commissioner Mayhew also highlights that the
funding for the two programs is different. Id. at 15. “In sum,” she argues, “this case
involves mutually exclusive state and federal benefits, created by separate
governments and governed by distinct laws.” Id.
Commissioner Mayhew contends that “the provisions of the Welfare Act
[PRWORA] unquestionably lie at the core of this suit.”

Id.

at 16.

She

acknowledges that the state of Maine voluntarily intervened and created a program
to provide healthcare to Medicaid-ineligible noncitizens; however, she points out
that “the State was not required . . . to create a state program to remedy the effects
of Congress’s action” and that the State should not be penalized “for its initial
generosity by enjoining the termination of that program.”

Id.

Commissioner

Mayhew argues that because the real issue concerns PRWORA, a congressionallyenacted statute, the standard of review in this case should be rational basis instead
of strict scrutiny. Id.

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Finally, Commissioner Mayhew contends that the argument―“once Maine
voluntarily extended medical assistance benefits to Medicaid-ineligible aliens, the
Equal Protection Clause prevented the State from reversing course”―is without
merit. Id. at 19 (emphasis in original). She argues that if the Court were to adopt
this logic, the Equal Protection Clause would become “a one-way ratchet.” Id.
B.

Mr. Bruns’s Opposition

Mr. Bruns responds that “[t]he State of Maine’s discriminatory conduct in
enacting P.L. 2011, Ch. 380, § KK-4, and the Defendant’s administration of that law
is plainly a classification based upon alienage and therefore subject to strict
scrutiny.” Pl.’s Opp’n at 5. He claims that Commissioner Mayhew uses “word play”
to avoid the application of strict scrutiny to the facts of this case by attempting to
distinguish MaineCare from an alleged separate state health benefit program for
noncitizens. Id.
Mr. Bruns contends that “in reality . . . both citizens and non-citizens were
enrolled in the same MaineCare program.” Id. at 1. He argues that “non-citizens
entered the program by filling out the exact same MaineCare application; their
eligibility was determined pursuant to the exact same guidelines; and they received
the exact same MaineCare cards that entitled them to receive the exact same
MaineCare benefits.” Id. Therefore, Mr. Bruns insists that Commissioner Mayhew
cannot “justify her wrongful conduct by now claiming that [ ] [he] and members of
the putative class were enrolled in a separate unnamed, secret program.” Id. He
states that, contrary to Commissioner Mayhew’s arguments, “MaineCare is not just

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a meaningless label” and insists that DHHS’s references to MaineCare benefits for
noncitizens were not mistakes. Id. at 7.
Mr. Bruns also makes a historical argument, linking MaineCare to its
predecessor, the Maine Medical Assistance Program. Id. at 7-10. He notes that
when enacting legislation to provide medical benefits to noncitizens in spite of
PRWORA, it “was no accident” that the Legislature referenced “‘medical
assistance.’” Id. at 9. Further, Mr. Bruns insists that Commissioner Mayhew’s
argument that two separate programs existed based on their different funding
structures is a red herring. Id. at 11. Instead he explains, “[t]he providers that
render services to individuals enrolled in MaineCare were paid by the same entity:
the [s]tate of Maine.” Id.
Mr. Bruns asserts that Commissioner Mayhew’s arguments require the Court
to look “beyond the allegations in the Complaint and resolve the factual dispute she
is attempting to create surrounding whether MaineCare was a single program.” Id.
at 5. Mr. Bruns cites First Circuit precedent to underscore that civil rights actions
are not subject to a heightened pleading standard. Id. at 6. Moreover, Mr. Bruns
argues that Commissioner Mayhew’s concession that the health benefit termination
was based on alienage combined with the facts alleged in his Complaint, clearly
establish that his Complaint must survive a Rule 12(b)(6) motion. Id. He argues
that Commissioner Mayhew’s reliance on Pimentel and Hong Pham is misplaced
because “both involved the termination of entirely separate and distinct programs
that included only non-citizens.” Id. at 13.

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Finally, Mr. Bruns clarifies that he is pursuing this lawsuit to remedy a
wrong committed not by the federal government, but by Commissioner Mayhew and
her agency. Id. at 14. In passing PRWORA, Mr. Bruns argues, Congress “did not
prescribe[] a national uniform immigration policy with regard to access to medical
case,” but “authorized individual states to decide for themselves whether to provide
medical care for medically indigent aliens who had been in the country less than
five years.” Id. at 15. Mr. Bruns asserts that the correct standard of review for this
case should be strict scrutiny.2 Id. at 15-16. Thus, he argues that “[t]he absence of
a

national,

uniform

policy

forecloses

the

Defendant’s

position

that

her

discriminatory action was consistent with Constitutional principles.” Id. at 17.
C.

The Commissioner’s Reply to Mr. Bruns’s Opposition Motion

Commissioner Mayhew insists that Mr. Bruns’s historical account of the
MaineCare program is “simplistic” and overlooks the intervening events in the mid1990s when Congress passed PRWORA and the State stepped in to provide benefits
for Medicaid-ineligible aliens.

Def.’s Reply at 2.

Given her “more accurate”

historical account, Commissioner Mayhew urges that “[i]t is simply not the case
that Maine has operated a unitary state medical assistance program since 1973.”
Id. at 2-3.
Citing Maldonado v. Fontanes, 568 F.3d 263, 268 (1st Cir. 2009),
Commissioner Mayhew rejects Mr. Bruns’s assertion that she is asking the Court to
Citing Soskin v. Robertson, 353 F.3d 1242 (10th Cir. 2004), Mr. Bruns acknowledges that
“[o]ne court has concluded that PRWORA reflected a national policy of granting discretion to the
states”, but he distinguishes that case as “incorrectly decided . . . because a national policy of
granting discretion to individual states is, by definition, not a uniform policy, [ ] [and] puts the case
at odds with the Supreme Court’s decision in Graham.” Pl.’s Opp’n at 17.
2

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employ a heightened pleading standard at this point in the litigation.

Id.

Acknowledging that a court may not “peer behind [the] factual allegations in the
case” in ruling on a motion to dismiss, she points out that a court is not bound to
accept a legal conclusion couched as a factual allegation. Id. at 3-4. She insists that
“the nature and relationship between the two programs at issue here is patently a
legal question.” Id. at 4. Citing Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir.
2011), she states that “[t]he characteristics distinguishing the state and federal
benefits―their legal basis, legislative history, and funding source―are all matters of
public record appropriate for consideration on a motion to dismiss.” Id. at 4 n.3.
Next, Commissioner Mayhew contends that Mr. Bruns overstates the
significance of DHHS’s admittedly inaccurate references to MaineCare as the
program responsible for providing post-PRWORA health benefits to Medicaidineligible aliens. Id. at 3 n.1. Pursuant to Pimentel, she emphasizes that what
matters is not the appearance of a single program but the “‘legal reality that the
state and federal benefits were created by separate governments at different points
in history, arose from and were subject to distinct laws, and were primarily funded
by different sovereigns.’” Id. (quoting Pimentel, 670 F.3d at 1107-08). Furthermore,
she states that Mr. Bruns “apparently mistakes [ ] candor . . . for an admission” of
discrimination in her motion to dismiss.

Id. at 3 n.2.

Commissioner Mayhew

maintains that in her motion to dismiss, she simply clarified that the state benefits
at issue were never offered to citizens, and therefore the State did not engage in

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selective treatment of noncitizens vis-à-vis any other group when it terminated
health benefits for Medicaid-ineligible qualified aliens. Id.
Finally, Commissioner Mayhew contends that the cases Mr. Bruns relies on
to support his Equal Protection argument, are factually distinct from this case. Id.
at 5. She explains that Aliessa ex rel. Fayad v. Novello, 754 N.E.2d 1085 (N.Y.
2001), and Fitch v. Commonwealth Health Insurance Connector Authority, 946
N.E.2d 1262 (Mass. 2011) are not analogous because each of the state health benefit
programs in those cases served both citizens and aliens. Id. She states “plaintiff’s
attempt to analogize the[se] [cases] to the present case depends entirely on his
mischaracterization of the state and federal benefits here as a single state benefit.”
Id.
III.

DISCUSSION
A.

Legal Standard

According to Rule 8(a), “a pleading that states a claim for relief must contain
. . . a short and plain statement of the claim showing that the pleader is entitled to
relief.” FED. R. CIV. P. 8(a)(2). The United States Supreme Court has observed that
“the pleading standard Rule 8 announces does not require ‘detailed factual
allegations,’ but it demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive a
motion to dismiss, the plaintiff must plead “sufficient facts to show that he has a
plausible entitlement to relief.” Sanchez, 590 F.3d 31, 41 (1st Cir. 2009) (quoting

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Iqbal, 556 U.S. at 678). The First Circuit illuminated the proper analytic path in
Schatz:
Step one: isolate and ignore statements in the complaint that simply
offer legal labels and conclusions or merely rehash cause-of-action
elements.
Step two: take the complaint’s well-pled (i.e., nonconclusory, non-speculative) facts as true, drawing all reasonable
inferences in the pleader’s favor, and see if they plausibly narrate a
claim for relief.
669 F.3d at 55 (citing Ocasio-Hernandez v. Fortuna-Burset, 640 F.3d 1, 7, 11-12 (1st
Cir. 2011)). Although the Court must accept all factual allegations in the complaint
as true, it is not bound to credit “bald assertions, unsupportable conclusions, and
opprobrious epithets.” Campagna v. Massachusetts, Dep’t of Env’t Prot., 334 F.3d
150, 155 (1st Cir. 2003) (quoting Dartmouth Review v. Dartmouth Coll., 889 F.2d 13,
16 (1st Cir. 1989)). Instead, “plaintiffs are obligated to set forth in their complaint
‘factual allegations, either direct or inferential, regarding each material element
necessary to sustain recovery under some actionable legal theory.’” Dartmouth
Review, 889 F.2d at 16 (quoting Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st
Cir. 1988)).
Generally, in deciding a motion to dismiss under Rule 12(b)(6), a court “may
properly consider only facts and documents that are part of or incorporated into the
complaint; if matters outside the pleadings are considered, the motion must be
decided under the more stringent standards applicable to a Rule 56 motion for
summary judgment.” Trans-Spec Truck Service, Inc. v. Caterpillar Inc., 524 F.3d
315, 321 (1st Cir. 2008) (citing Garita Hotel, Ltd. P’ship v. Ponce Fed. Bank, 958
F.2d 15, 18 (1st Cir. 1992)). At the same time, there is a narrow exception “for
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documents the authenticity of which are not disputed by the parties; for official
public records; for documents central to plaintiffs’ claim; or for documents referred
to in the complaint.” Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d
30, 34 (1st Cir. 2001) (quoting Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993));
Knowlton v. Shaw, 708 F. Supp. 2d 69, 75 (D. Me. 2010) (citing Rivera v. Centro
Medico de Turabo, Inc., 575 F.3d 10, 15 (1st Cir. 2009)). Furthermore, in ruling on
a Rule 12(b)(6) motion to dismiss, the Court “can consider (a) ‘implications from
documents’ attached to or fairly ‘incorporated into the complaint,’ (b) ‘facts’
susceptible to ‘judicial notice,’ and (c) ‘concessions’ in plaintiff’s response to the
motion to dismiss.’” Schatz, 669 F.3d at 55-56; Haley, 657 F.3d at 46 (A court “may
augment the[ ] facts and inferences with data points gleaned from documents
incorporated by reference into the complaint, matters of public record, and facts
susceptible to judicial notice”).
B.

The Equal Protection Clause

In his Complaint, Mr. Bruns claims that Ms. Mayhew’s “denial of benefits to
otherwise eligible persons based solely upon their alienage and immigration status
violates the equal protection guarantees of the United States Constitution.” Compl.
¶ 4. The Equal Protection Clause of the Fourteenth Amendment of the United
States Constitution provides, “[n]o State shall . . . deny to any person within its
jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV, § 1. The
United States Supreme Court has interpreted the word “person” within the Equal
Protection Clause to include lawfully admitted resident aliens and citizens of the

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United States. Graham v. Richardson, 403 U.S. 365, 371 (1971). Therefore, both
noncitizens and citizens are entitled to “equal protection of the laws of the State in
which they reside.” Id. The Equal Protection Clause also requires that similarly
situated individuals be treated alike by the laws of a state. City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 439 (1985); Tapalian v. Tusino, 377 F.3d 1, 5
(1st Cir. 2004).
In evaluating whether a plaintiff has presented a viable equal protection
claim, the First Circuit has explained that a court must “look for two elements: (1)
whether the [ ] [plaintiffs] [were] treated differently than others similarly situated,
and (2) whether such a difference was based on an impermissible consideration . . .”
Macone v. Town of Wakefield, 277 F.3d 1, 10 (1st Cir. 2002); see Barrington Cove,
LP, v. R.I. Hous. & Mortg. Fin. Corp., 246 F.3d 1, 7 (1st Cir. 2001). Once these two
elements are shown, the court must determine what level of scrutiny applies to the
law at issue. See City of Cleburne, 473 U.S. at 439-40 (“the courts have themselves
devised standards for determining the validity of state legislation or other official
action that is challenged as denying equal protection”).
If a state law engages in selective treatment of similarly situated individuals,
the “general rule is that legislation is presumed to be valid and will be sustained if
the classification drawn by the statute is rationally related to a legitimate state
interest.” Id. at 440. Yet, if the statute classifies by race, alienage, national origin
or impinges on fundamental rights, strict scrutiny will apply and the law will only
be upheld if it is necessary to promote a compelling governmental interest. Id.;

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Bernal v. Fainter, 467 U.S. 216, 219 (1984); Graham, 403 U.S. at 366-70, 375-76
(concluding “[t]he classifications involved in the instant cases [noncitizens versus
citizens regarding their entitlement to state welfare benefits], on the other hand,
are inherently suspect and are therefore subject to strict judicial scrutiny whether
or not a fundamental right is impaired”).
To determine what standard of review applies, the Court must first
determine whether the state of Maine discriminated against Mr. Bruns and other
Medicaid-ineligible qualified aliens compared to similarly situated individuals.
1.

“Similarly Situated” Individuals

In the equal protection context, “[t]he formula for determining whether
individuals or entities are ‘similarly situated’ for equal protection purposes is not
always susceptible to precise demarcation.” Barrington Cove, LP, 246 F.3d at 8. In
Dartmouth Review, the First Circuit provided guidance:
The test is whether a prudent person, looking objectively at the
incidents, would think them roughly equivalent and the protagonists
similarly situated . . . the ‘relevant aspects’ are those factual elements
which determine whether reasoned analogy supports, or demands a
like result. Exact correlation is neither likely nor necessary, but the
cases must be fair congeners. In other words, apples should be
compared to apples.
889 F.2d at 19. “[A] complaint may survive a Rule 12(b)(6) motion as long as the
‘similarly situated’ prong of the equal protection rubric is satisfied by an allegation
that the plaintiff was a member of the class . . . thereby supporting the essential
implication that class members are similarly situated in all relevant respects.”
Barrington Cove, LP, 246 F.3d at 10. Yet, “an equal protection claimant ‘may not

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prevail [against a Rule 12(b)(6) motion] simply by asserting an inequity and tacking
on the self-serving conclusion that the defendant was motivated by a discriminatory
animus.’” Id. (quoting Coyne v. Somerville, 972 F.2d 440, 444 (1st Cir. 1992)).
Here, the parties dispute whether Mr. Bruns and his proposed class are
“similarly situated” with United States citizens based upon two distinct views of the
MaineCare framework. Commissioner Mayhew claims that the State provided two
separate programs for health care benefits to (1) citizens and Medicaid-eligible
qualified aliens and (2) Medicaid-ineligible qualified aliens who had not lived in the
United States for at least five years. Def.’s Mot. at 12-16. She argues that Mr.
Bruns was not similarly situated with citizens receiving federal MaineCare benefits
because he and the members of his proposed class never actually received those
benefits or were in a state-funded and controlled benefit program with citizens. Id.
at 9.

Mr. Bruns rejects this claim asserting that there was a single

program―MaineCare―which provided the same health benefits to both citizens and
Medicaid-ineligible qualified aliens. Pl.’s Opp’n at 7-11.
2.

Extrinsic Evidence and the Motion to Dismiss

The central preliminary issue is what the Court may consider in ruling on the
motion to dismiss. Mr. Bruns insists that whether there are two separate benefit
programs or a unified benefit program is a factual issue unfit for resolution in a
motion to dismiss. Pl.’s Opp’n at 5-6. Commissioner Mayhew characterizes the
issue as one of law, pointing out the “tenet that a court must accept as true all of

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the allegations contained in a complaint is inapplicable to legal conclusions.” Def.’s
Mot. at 3 (quoting Maldonado, 568 F.3d at 268).
On this question, the Court agrees with Mr. Bruns; whether the programs
are separate or joint is a factual issue. See Pimentel, 670 F.3d at 1108 (suggesting
the court should engage in “a careful consideration” of facts to determine whether
the benefit programs are joint or separate for purposes of the Equal Protection
Clause). Although there are some limitations to the principle that in ruling on a
motion to dismiss, a court must restrict itself to the allegations in the complaint, the
First Circuit has described this exception as “narrow.” Alternative Energy, 267 F.3d
at 33.
Assuming for the moment that the Court may consider the statutory
structure of the federal and state legislation and the legislative history to determine
whether it is consistent with Mr. Bruns’s allegations, the question turns to whether
the extrinsic evidence is so strong that it undercuts the truth of the allegations in
the Complaint, disguising a legal position as a factual assertion. In the colorful
words of the First Circuit, the Court is not required to accept as true “bald
assertions, unsupportable conclusions, and opprobrious epithets.” Campagna, 334
F.3d at 155. In making this assessment, the Court must draw all reasonable factual
inferences in Mr. Bruns’s favor in determining whether he has made a plausible
case for relief. Schatz, 669 F.3d at 55.

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3.

The History of Federal Medicaid in Maine

Created by Congress in 1965, Medicaid enables the federal government,
through cooperative agreements with the states, to assist elderly, poor, and disabled
individuals in obtaining medical care. 42 U.S.C. § 1396 et seq.; 42 C.F.R. § 430.0
(2002). The federal program provides financial assistance to states that establish
Medicaid programs consistent with federal law and according to state plans
approved by the United States Department of Health and Human Services. 42
U.S.C. § 1396 (2000); 42 C.F.R. §§ 430.0, 430.10-.20 (2002); see Long Term Care
Pharm. Alliance v. Ferguson, 362 F.3d 50, 51 (1st Cir. 2004). Thus, federal-state
Medicaid programs are subject to federal approval and control. See Frew ex rel.
Frew v. Hawkins, 540 U.S. 431, 433 (2004) (“State participation is voluntary; but
once a State elects to join the program, it must administer a state plan that meets
federal requirements”).
In April 1974, Maine began providing medical assistance to the needy in
conjunction with federal Medicaid. See An Act Relating to Supplemental Security
Income, 1973 Me. Laws 790 § 2 (stating that “[t]he department is authorized to
administer programs of aid, medical or remedial care and services for medically
indigent persons”). In 1996, Congress passed PRWORA significantly changing the
United States welfare system and eliminating Medicaid coverage for some aliens to
ensure that “the availability of public benefits [does] not constitute an incentive for
immigration to the United States.” Pub. L. No. 104-193, 110 Stat 2105 (1996); 8
U.S.C. § 1601(2)(B). The law divided aliens into two classes for Medicaid eligibility:

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qualified and non-qualified aliens. Non-qualified aliens include illegal aliens who
are ineligible for Medicaid benefits. See 8 U.S.C. § 1611(a). Qualified aliens include
lawful permanent residents, asylees, certain refugees, and a few other specific
categories of legal noncitizens. Id. § 1641(b). The law further broke down eligibility
for Medicaid benefits so that qualified aliens are only eligible to receive federal
benefits if they have lived in the United States for at least five years.3 Id. § 1613(a).
To comply with federal law, the states were required to deny federal Medicaid
coverage to qualified aliens who are barred from receiving benefits by the five-year
rule. See 42 U.S.C. § 1396; 10-144 C.M.R. ch. 332, pt. 2 § 3.4 (2012) (stating that for
MaineCare “[l]egal permanent residents are not eligible for full benefits if they have
been in the U.S. less than five years”). Qualified aliens unable to receive Medicaid
may still receive emergency benefits necessary for the treatment of emergency
medical conditions. 8 U.S.C. § 1611(b). Also, PRWORA explicitly authorizes states
to provide state-funded health benefit programs to qualified aliens subject to the
five-year Medicaid residency requirement. Id. § 1622(a).
In 1997, in response to PRWORA, the state of Maine enacted a state statute
that granted state-funded medical care to Medicaid-ineligible qualified aliens. See
Temporary Assistance for Needy Families, 1997 Me. Laws 530, ch. 1053-B §
3762(3)(B).

The Maine Legislature provided that “recipients under this

subparagraph are limited to categories of noncitizens who would be eligible for
TANF or Medicaid programs but for their status as aliens under PRWORA.” Id. §
Section 1613(b) carves out some exceptions to this rule and deems certain refugees and
asylees as well as veterans and members of the Armed Forces on active duty as qualified immigrants
eligible for federal benefits despite the five-year residency requirement. 8 U.S.C. § 1613(b).
3

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3762(3)(B)(2).

As a result, in Maine, qualified aliens subject to the five-year

Medicaid residency requirement received state-funded health benefits until 2011
when the Maine Legislature eliminated the program. 2011 Me. Laws 380, § KK4(B)(2).
4.

Distinguishing MaineCare from the Former Program
Administering Benefits to Medicaid-Ineligible Aliens

In Mr. Bruns’s Complaint, he states that, “[a]lthough MaineCare benefits for
[ ] non-citizens were exclusively state-funded while United States citizen benefits
were jointly funded by the federal and state governments, this did not create an
independent state Medicaid program for lawful permanent residents in Maine.
Instead, full MaineCare benefits were offered to non-citizens lawfully residing in
the State of Maine and citizens on the same terms through the same MaineCare
program.” Compl. ¶ 27. There is a strong suggestion from other jurisdictions that
this allegation is incorrect.
In Pimentel, a case dealing with an equal protection challenge to state and
federal food stamp programs post-PRWORA by a class of noncitizens, the Ninth
circuit stated that each health benefit programs’ funding source is only one factor
for determining whether the programs are joint or separate. Pimentel, 670 F.3d at
1107; see Hong Pham, 16 A.3d at 654 (finding, after engaging in a similar factual
comparison, that the federal Medicaid program and Connecticut’s aliens-only health
benefit program were separate in the context of an equal protection challenge
brought by Medicaid-ineligible qualified aliens).

In Pimentel, the Ninth Circuit

concluded that “[a] careful consideration of the contours” of each benefit program
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“including the statutory scheme, source of funding, extent of state involvement, and
history” helped the Court determine whether the state and federal welfare
programs were separate or joint for equal protection purposes. 670 F.3d at 1107.
Accordingly, augmenting the record as permitted by Schatz and Haley, the Court
evaluates the statutory scheme, source of funding, extent of state involvement, and
history of each program.
First, with respect to the statutory scheme, MaineCare is a joint federal and
state funded program. 2001 Me. Laws 450 § C-2. Because federal funds are used to
pay for part of the program, it is subject to federal control. 42 U.S.C. § 1396a
(2000); 42 C.F.R. §§ 430.0, 430.10-.20 (2002). Further, MaineCare is exclusively
offered to citizens and qualified aliens not subject to a five-year residency exclusion.
10-144 C.M.R. ch. 332, pt. 2 (2012). By contrast, the program Mr. Bruns and other
members of his proposed class received benefits through was statutorily mandated
to be funded only with state funds.4 See 8 U.S.C. § 1613(a), § 1622(a); 2011 Me.
Laws 380, § KK-4(B)(2). As the federal government had expressly disclaimed any
obligation to provide benefits for Medicaid-ineligible qualified aliens and the state of
Maine voluntarily assumed this obligation, the Maine program was state-controlled.
See 8 U.S.C. § 1613(a), § 1622(a); 1997 Me. Laws 530, ch. 1053-B § 3762(3)(B).
Furthermore, the Maine Legislature expressly limited assistance under the state

Ms. Mayhew admits that “[a] Department administrative error led to some amount of federal
money being applied to Maine’s state medical assistance benefits for Medicaid-ineligible aliens.
Such errors are subject to a financial reconciliation process between the Department and the U.S.
Department of Health and Human Services.” Def.’s Mot. at 7 n.4. The Court does not find that this
error changes the substance of the program because by statute it was not supposed to be funded with
federal dollars.
4

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program for Medicaid-ineligible qualified aliens to “categories of noncitizens who
would be eligible . . . for Medicaid programs but for their status as aliens under
PRWORA.” 1997 Me. Laws 530, ch. 1053-B § 3762(3)(B). This text underscores the
Maine Legislature’s intent that the program exclusively benefit Medicaid-ineligible
qualified aliens.
Mr. Bruns insists the Court should find the two programs are unified because
Maine DHHS referred to them interchangeably as MaineCare.5 Pl.’s Opp’n at 7-11.
Furthermore, he argues that “non-citizens entered the program by filling out the
exact same MaineCare application; their eligibility was determined pursuant to the
exact same guidelines; and they received the exact same MaineCare cards that
entitled them to receive the exact same MaineCare benefits.” Id. at 1. The Court
wonders about whether Mr. Bruns will be able to support his claim. In Pimentel,
the Ninth Circuit faced similar circumstances when a state of Washington agency
used the same application form for citizens and noncitizens with respect to its
federal and state food programs and never informed applicants which program
applied to their receipt of benefits.

670 F.3d at 1101-02.

The Pimentel Court

concluded: “although the district court found that DHHS effectively operated SNAP
[the State’s aliens-only program] and FAP [the federal program] benefits under one
unified program . . . the appearance of a single program does not overcome this fact:
the two programs are, in reality, two separately administered programs funded by
two distinct sovereigns.” Id. at 1107.
In her Motion to Dismiss, Commissioner Mayhew stated, “what the plaintiff received were
state medical assistance benefits that were, admittedly, often inaccurately referred to as ‘MaineCare’
benefits by the Department and others.” Def.’s Mot. at 13.
5

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From the Court’s perspective, it is difficult to conclude that the use or misuse
of the name, MaineCare, should control the substance of the two programs. The
programs’ substantive differences include their funding structures, histories, and
sources of control. Id. at 1101 (discussing SNAP versus FAP benefits); Pham, 16
A.3d at 641-42 (comparing the SMANC and SAGA programs).
Next, the source of each program’s funding and the level of state involvement
appears to differ with each program. MaineCare is funded jointly by the state and
federal governments whereas the state health program for Medicaid-ineligible
aliens statutorily was paid for only with state funds. 42 U.S.C. § 1396a (2000); 8
U.S.C. § 1622(a); see Pimentel, 670 F.3d at 1108 (“[although] states provide fifty
percent of the administrative costs to the SNAP program, this still does not register
Washington State anything more than an arm of the U.S. Department of
Agriculture, distributing SNAP benefits under a federal program”).

It does not

matter that Commissioner Mayhew has admitted that Maine erroneously used
some federal funds to pay for state medical benefits to Medicaid-ineligible aliens.
Maine’s use of those funds contravened PRWORA, which expressly prohibited
federal payment for health benefits to Medicaid-ineligible qualified aliens. Legally,
the State undertook the obligation to pay for any benefits it provided Medicaidineligible aliens and therefore the funding structure for each program was
fundamentally separate.
Similarly, given the programs’ separate funding structures, the extent of each
government’s involvement with the programs seems to differ. The federal and state

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of Maine governments share control over MaineCare whereas Maine exclusively
controlled its program providing benefits to Medicaid-ineligible aliens. 42 U.S.C. §
1396a; 8 U.S.C. § 1613(a); 8 U.S.C. § 1622(a); 1997 Me. Laws 530, ch. 1053-B §
3762(3)(B). For example, 42 U.S.C. § 1396a sets out a long list of requirements that
states administering partially federal-funded Medicaid programs must comply with
to continue receiving federal funds. 42 U.S.C. § 1396a. The State did not have
these same requirements with its alien-only program. See 1997 Me. Laws 530, ch.
1053-B § 3762(3)(B).
Finally, the history of the programs indicates their fundamental differences.
The state of Maine established its Medicaid system in 1973 as a joint venture with
the federal government. 1973 Me. Laws 790. The federal and state governments
continue to provide benefits to citizens and certain qualified aliens through
MaineCare.

In 1997, Maine, without assistance from the federal government,

formed the state-funded program that provided Mr. Bruns with medical benefits
until 2011. 1997 Me. Laws 530, ch. 1053-B § 3762(3)(B); 2011 Me. Laws 380, § KK4(B)(2).

But for the elimination of coverage for qualified aliens because of

PRWORA, there is no indication that the Maine Legislature would have passed a
separate state-funded medical benefit program.
Applying Pimentel’s analysis to clarify whether the federal and state
programs are truly separate or unified, a comparison of their statutory history and
provisions strongly suggests that MaineCare is a separate and distinct program
from Maine’s former medical benefit program for Medicaid-ineligible aliens.

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5.

The Restrictive Nature of a Motion to Dismiss

In short, the applicable statutes powerfully suggest that Mr. Bruns’s
allegation that he benefitted from the same state of Maine program that benefitted
United States citizens in Maine is factually incorrect.

However, because of the

procedural mechanism under which it is laboring, namely a motion to dismiss, it is
clear that the Court must not assume the role of a fact-finder. It is sometimes
difficult to draw a bright line between legal conclusions and factual allegations and
between “bald assertions,” Campagna, 334 F.3d at 155, and good faith allegations
subject to proof. This is one of those cases. Here, despite some misgivings, the
Court concludes that the line between factual allegation and legal conclusion is too
murky for a clean and decisive resolution.
Furthermore, although Pimentel and Hong Pham are persuasive and suggest
that Mr. Bruns will ultimately be unsuccessful, neither was decided on a motion to
dismiss.

Pimentel, 670 F.3d at 1111 (reversing the granting of a motion for

preliminary injunction); Hong Pham, 16 A.3d at 654 (addressing a trial court order
granting a motion for preliminary injunction). In sum, the Court is chary about
issuing a ruling that could later be attacked as bottomed on disputed and prohibited
factual findings. From the Court’s perspective, it is preferable to allow the parties
to present the Court with a different vehicle for the resolution of this case, one that
would provide the Court with a stipulated set of facts or allow findings on a narrow
range of disputed facts.6

The Court is aware of Mr. Bruns’s motions for preliminary injunction and class certification
and will schedule a telephone conference regarding further action on these motions.
6

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IV.

CONCLUSION
The Court DISMISSES without prejudice Commissioner Mary Mayhew’s

Motion to Dismiss the Class Action Complaint (ECF No. 12).

SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
CHIEF UNITED STATES DISTRICT JUDGE
Dated this 20th day of November, 2012

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