KLANE v. MAYHEW

Filing 26

ORDER ON DEFENDANTS MOTION TO DISMISS AND PLAINTIFFS MOTION TO STAY denying 11 Motion to Dismiss; granting Motion to Stay By JUDGE NANCY TORRESEN. (dfr)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
EVAN KLANE by his guardian
DEBORAH KLANE,
Plaintiff,
v.
MARY MAYHEW, Commissioner of
Maine Department of Health and
Human Services,
Defendant.

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ORDER ON DEFENDANT’S MOTION TO DISMISS AND PLAINTIFF’S
MOTION TO STAY
This case comes before the Court on the Defendant’s motion to dismiss (ECF
No. 11) and the Plaintiff’s motion to stay (ECF No. 14). The Court held oral
argument on the motions on February 19, 2013. For the reasons that follow, the
Defendant’s motion to dismiss is DENIED, and the Plaintiff’s motion to stay is
GRANTED.
BACKGROUND1
Evan Klane is a 21-year old MaineCare recipient with significant disabilities
who currently lives at home. He requires constant supervision, but he has been able
to live at home because MaineCare has provided him with Level V home nursing
care through its Private Duty Nursing (PDN) program, which includes round-theThe parties do not dispute the Court’s ability to consider the Administrative Hearing
Recommendation, Final Decision, Petition for Review of Final Agency Action Pursuant to M.R. Civ.
P. 80C and 5 M.R.S. § 11001 et seq., and First Amended Petition for Review of Final Agency Action
Pursuant to M.R. Civ. P. 80C and 5 M.R.S. § 11001 et seq., which are attached as exhibits to the
Defendant’s motion. See Kilroy v. Mayhew, 841 F. Supp. 2d 414, 416-17 (D. Me. 2012).
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clock nursing care.2 In August of 2011, the Maine Department of Health and
Human Services determined that Klane was no longer eligible for Level V PDN
services but was instead entitled to 28 hours per week of Home and Community
Benefits for the Elderly and for Adults with Disabilities services.
Klane filed a timely administrative appeal of the denial of services, and an
administrative hearing was held in March of 2012. The hearing officer
recommended that the Commissioner affirm the denial of Klane’s Level V PDN
services, concluding that Klane’s condition was not “unstable” under the MaineCare
regulations. The Commissioner issued a final administrative decision adopting the
recommended decision on May 30, 2012.
Klane filed a petition for review of this decision pursuant to Maine Rule of
Civil Procedure 80C and 5 M.R.S. § 11007(4)(C), claiming that the hearing officer
erred as a matter of law when he reached the conclusion that Klane did not meet
the eligibility requirements for PDN Level V services. Specifically, Klane claimed:
The Recommended Decision is based on clear legal error. The hearing
officer erroneously interpreted MaineCare’s eligibility requirements for
PDN Level V services, adopting a reading that is contrary to the plain
language of the regulation, leads to an absurd result, is inconsistent
with the purpose of Section 96 and impermissibly shifted the burden of
persuasion from the Department to Evan Klane. In upholding the
decision, the Final Administrative Decision is based on the same clear
legal errors.
Def.’s Mot. to Dismiss and Inc. Mem. of Law Ex. 3 ¶¶ 18-19 (ECF No. 11-3).
Klane has cerebral palsy with spastic quadriplegia, intractable seizure disorder, hypoxemia,
congenital microcephaly, recurring pneumonia, anaphylaxis, acute bronchitis, pulmonary edema,
gastrointestinal bleeding, tachycardia and bradycardia. He has a tracheostomy tube that allows him
to breathe, and he receives nutrition, hydration, and medication through a gastrostomy tube. Klane’s
tracheostomy tube and gastrostomy tube both need to be monitored, and Klane’s tracheostomy tube
requires regular suctioning. Klane requires constant supervision. First Am. Verified Compl. ¶¶ 6-8
(ECF No. 6).
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The focus of Klane’s petition for review boils down to whether his
tracheostomy and gastrostomy tubes are used for an unstable condition. The case
has been fully briefed and argued before the Maine Superior Court, and the parties
are awaiting a decision. An appeal to the Maine Law Court is available to either
party. 5 M.R.S. § 11008(1).
On June 27, 2012, the Plaintiff filed a two-count complaint in this Court
alleging violations of Title II of the Americans with Disabilities Act (ADA) § 202, 42
U.S.C. § 12132, and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794,
and seeking declaratory and injunctive relief. The focus of the complaint is whether
Klane’s imminent risk of institutionalization violates Title II of the ADA and its
implementing regulations, particularly the integration mandate,3 and whether the
Commissioner’s actions constitute unlawful discrimination in violation of section
504 of the Rehabilitation Act.
DISCUSSION
Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), the
Defendant asks the Court to dismiss this case under either Burford abstention,
Colorado River abstention, or the common law rule against claim splitting. The
Plaintiff requests, as an alternative to dismissing the case, that the Court stay the
case pending resolution of Klane’s petition to the Superior Court.4

In Olmstead v. L.C. ex rel Zimring, 527 U.S. 581, 607 (1999), the Supreme Court held that
Title II of the ADA and its regulations require that the state provide community-based placement for
disabled individuals when a state treatment professional has determined that community-based
placement is appropriate and community-based placement can be reasonably accommodated, taking
into account the state’s resources and the needs of others with disabilities in the state.
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Although the Commissioner opposes the Plaintiff’s motion to stay, counsel for the
Commissioner conceded at oral argument that if the Court denies its motion to dismiss, the
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A. Burford Abstention
“As the First Circuit has repeatedly emphasized, ‘federal courts have a
virtually unflagging obligation to exercise the jurisdiction given them.’” Kilroy, 841
F. Supp. 2d at 419 (citing Chico Serv. Station, Inc. v. Sol P.R. Ltd., 633 F.3d 20, 29
(1st Cir. 2011)). However, under the Supreme Court’s decision in Burford v. Sun Oil
Co., 319 U.S. 315 (1943), “[a] federal court, by abstaining, may avoid the awkward
circumstance of turning the federal court into a forum that will effectively decide a
host of detailed state regulatory matters, to the point where the presence of the
federal court, as a regulatory decision-making center, makes it significantly more
difficult for the state to operate its regulatory system.” Bath Mem’l Hosp. v. Me.
Health Care Fin. Comm’n, 853 F.2d 1007, 1012 (1st Cir. 1988). The Court considers
three factors in determining whether Burford abstention is appropriate:
(1) [t]he availability of timely and adequate state-court review, (2) the
potential that federal court jurisdiction over the suit will interfere with
state administrative policymaking, and (3) whether conflict with state
proceedings can be avoided by careful management of the federal case.
Chico Serv. Station, 633 F.3d at 32.
The First Circuit has adopted a narrow reading of the Burford abstention
doctrine, noting “the Supreme Court’s repeated admonitions that Burford
abstention be ‘the exception, not the rule.’” Vaquería Tres Monjitas, Inc. v. Irizarry,
587 F.3d 464, 473 (1st Cir. 2009) (quoting Moses H. Cone Mem’l Hosp. v. Mercury
Constr. Corp., 460 U.S. 1, 14 (1983)). The First Circuit has explained that:

Commissioner is not opposed to staying this case pending resolution of the Plaintiff’s appeal in state
court.

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Burford abstention must only apply in “unusual circumstances,” when
federal review risks having the district court become the “regulatory
decision-making center.” Thus, when a federal court’s interference
would effectively create a dual review structure for adjudicating a
state’s specific regulatory actions, abstention under Burford may be
appropriate. We observed in Public Service Co. of New Hampshire v.
Patch, 167 F.3d 15 (1st Cir. 1998), that “[t]he fundamental concern in
Burford [was] to prevent federal courts from bypassing a state
administrative scheme and resolving issues of state law and policy that
are committed in the first instance to expert administrative
resolution.” Abstention is not warranted, however, when a claim
requires the federal court to decide “predominating federal issues that
do not require resolution of doubtful questions of local law and policy.”
Vaquería Tres Monjitas, 587 F.3d at 474 (quoting Bath Mem’l Hosp., 587 F.3d at
1012-13 and Patch, 167 F.3d at 24).
1. Factor One: Availability of Timely and Adequate State-Court
Review
There is no reason to think that the state court’s review of the Plaintiff’s
federal claims would be either untimely or inadequate. However, the Court is
troubled by the possibility that if the Plaintiff’s federal claims were later precluded
by his state court suit, he would, by appealing his adverse disability benefits
decision, have forfeited his right to bring his federal claims within their six-year
statute of limitations.5 Nonetheless, because timely and adequate state court review
is available, this factor is neutral in the Court’s abstention analysis.

Neither the ADA nor the Rehabilitation Act provides a statute of limitations for
discrimination claims, so the Court applies Maine’s six-year statute of limitations for civil actions.
On the other hand, 80C petitions have a 30-day statute of limitations Compare Conners v. Me. Med.
Ctr., 42 F. Supp. 2d 34, 51 (D. Me. 1999), with 5 M.R.S. § 11002(3).
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2. Factor
Two:
Policymaking

Interference

with

State

Administrative

The Defendant argues that because the Plaintiff’s claim is individual in
nature and not a systemic challenge to the Department’s decision-making process,
the Court’s exercise of jurisdiction over the Plaintiff’s claims will create a dual
review structure of state administrative actions and interfere with state
administrative policymaking. The Plaintiff counters that he is not asking the Court
to review the Commissioner’s interpretation of MaineCare’s regulations, as he does
in his 80C petition, but rather he is asserting his rights under the ADA and section
504 of the Rehabilitation Act. The Defendant’s argument relies heavily on this
Court’s decision in Kilroy.6 Kilroy, however, is distinguishable.
Unlike the plaintiff in Kilroy, who by-passed state administrative
review and sought federal injunctive relief against the agency’s interpretation
of its regulations, the Plaintiff here has petitioned the Superior Court
pursuant to Rule 80C for review of the Department’s interpretation of its
eligibility requirements for PDN Level V services. In his petition, he argues

Kilroy was a disabled, divorced parent of a minor son. Both Kilroy and his son received Social
Security Administration (SSA) disability benefits. Because Kilroy was required to pay child support
for his son, the SSA paid his son’s dependent benefits directly to Kilroy’s ex-wife, and the benefits
counted towards Kilroy’s monthly child support obligation. Kilroy also received food assistance
benefits under the federal Supplemental Nutrition Assistance Program (SNAP). The Department,
which administers the SNAP program in Maine, counted the sons’ dependent benefits as part of
Kilroy’s household income for purposes of determining Kilroy’s SNAP benefits. As a result, Kilroy
received fewer food assistance benefits than he otherwise would have. Kilroy, 841 F. Supp. 2d at 417.
Kilroy pursued an administrative appeal and the Department affirmed its calculation under its
interpretation of its regulations. Rather than petition the Superior Court for review of the
Department’s interpretation pursuant to Maine Rule of Civil Procedure 80C, Kilroy filed suit in this
Court seeking: (1) to enjoin the state from treating the dependent benefits paid to Kilroy’s ex-wife as
income for purposes of Kilroy’s food assistance benefits calculation; (2) to enjoin the Department
from reducing his food assistance; and (3) to require the state to issue the benefits he would have
received but for the inclusion of the dependent benefits in his income calculation. Id. at 418.
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that he does require nursing care seven days a week for his gastrostomy tube
and tracheostomy tube and that the Department’s interpretation of
“unstable” is erroneous. In his action before this Court, the Plaintiff claims
that the imminent risk of his institutionalization violates the antidiscrimination provision of the ADA and the Rehabilitation Act’s mandate
that services be provided to disabled individuals in the most integrated
setting possible.
In his complaint, the Plaintiff does not ask the Court to review the
Commissioner’s interpretation of its regulations, and he does not ask the
Court to order the Department to find him eligible for PDN Level V services
or to provide him with PDN Level V services specifically. Instead, the
Plaintiff seeks: (1) a declaratory judgment that the Department’s reduction of
his services constitutes unlawful discrimination; and (2) injunctive relief
ordering the Department to continue to provide Klane with community-based
services and “individualized coverage of Plaintiff’s service needs in the least
restrictive, most integrated setting.” First Am. Verified Compl. 14.
At this early stage, with no briefing on the merits of the Plaintiff’s case
and only the complaint and the administrative decisions in the record, the
Court is unable to determine whether its adjudication of this case will require
it to effectively — and improvidently — decide state regulatory matters. The
Court appreciates the state’s interest in coherent administration of disability
benefits, but concludes that the record and briefing on the Plaintiff’s claims

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are insufficient for it to decide that this factor weighs in favor of abstention.
The abstention analysis will depend on how the Plaintiff develops his case.7
3. Factor Three: Conflict with State Proceeding
The Plaintiff has moved for a stay in this case pending resolution of his
appeal of his adverse administrative decision in state court. This would
permit the state court to resolve any issues of regulatory interpretation
before this Court takes up its consideration of the state’s compliance with the
ADA, the Rehabilitation Act, and Olmstead.
Because at this stage it appears that this case involves uniquely
federal issues that are broader than the narrow regulatory issue being
considered by the State court, and because the Court can, by granting a
prudential stay, allow the state to resolve the regulatory questions, the Court
denies the Defendant’s motion to dismiss the case under Burford.
B. Colorado River Abstention
The Colorado River stay doctrine is another narrow exception to “the
virtually unflagging obligation of the federal courts to exercise the jurisdiction given
them.” Colo. River, 424 U.S. at 817. The First Circuit explained that in Colorado
River:
The Court emphasized that “the circumstances permitting the
dismissal of a federal suit due to the presence of a concurrent state
proceeding for reasons of wise judicial administration are considerably
more limited than the circumstances appropriate for abstention” and
should be “exceptional” to justify deferral to the state court.
Counsel for the Commissioner indicated at oral argument that he intends to raise a
preclusion argument if the Commissioner wins in state court. The preclusion argument will also
depend on how the Plaintiff’s claims develop in federal court.
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Currie v. Group Ins. Comm’n, 290 F.3d 1, 9-10 (1st Cir. 2002) (quoting Colo. River,
424 U.S. at 818).
The Court considers six factors to determine when Colorado River deference
is appropriate, although these factors are neither determinative nor exhaustive:
(1) whether either court has assumed jurisdiction over a res; (2) the
inconvenience of the federal forum; (3) the desirability of avoiding piecemeal
litigation; (4) the order in which the forums obtained jurisdiction; (5) whether
federal law or state law controls; and (6) whether the state forum will
adequately protect the interests of the parties.
Currie, 290 F.3d at 11 (quoting Burns v. Watler, 931 F.2d 140, 146 (1st Cir. 1991)).
The Court’s analysis of these factors must be “heavily weighted in favor of the
exercise of jurisdiction.” Moses H. Cone Mem’l Hosp., 460 U.S. at 16.
The first two Colorado River factors are easily dispensed with because there
is no res and the state and federal forums are equally convenient. On the third
factor, the Defendant argues that allowing both cases to continue creates piecemeal
litigation.

The Defendant argues that Congress, by requiring state Medicaid

agencies to provide a hearing process, suggested “a preference for consolidation of
challenges to individual benefits decisions within the state administrative and
judicial process.” Def.’s Mot. to Dismiss and Inc. Mem. of Law 15. This is at least
balanced, however, by the fact that the Plaintiff’s challenges are brought under
federal anti-discrimination statutes, which evidence clear Congressional intent to
allow disabled individuals to bring suit in federal court. See 42 U.S.C. §§ 12132-33;
29 U.S.C. § 794. Furthermore:

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In considering whether the concern for avoiding piecemeal litigation
weighs against the exercise of jurisdiction, “the district court must look
beyond the routine inefficiency that is the inevitable result of parallel
proceedings to determine whether there is some exceptional basis for
requiring the case to proceed entirely in the [state] court.” Only where
piecemeal adjudication gives rise to harsh, contradictory, unfair
consequences, is piecemeal adjudication “exceptional” . . . .
Huffmire v. Town of Boothbay, 35 F. Supp. 2d 122, 128 (D. Me. 1999) (quoting
Burns, 931 F.2d at 146). In this case, the Court does not find the “exceptional”
circumstances that the doctrine contemplates.
As to the fourth factor, although the state court obtained jurisdiction first,
and there is already a fully developed administrative record before the Superior
Court, the Plaintiff’s federal law claims will require their own development.
Therefore, any efficiency to be gained through having the Plaintiff litigate his
federal claims in state court does not seem considerable.
On the fifth factor – whether the federal claims are intertwined with the
state claims – the Defendant relies on Currie. In Currie, the plaintiff brought one
suit in federal district court challenging the disability benefits provision of an
insurance policy under the ADA and a separate suit in state court challenging the
same policy under state law. The district court granted summary judgment for the
defendant, but the First Circuit stayed the plaintiff’s federal appeal under the
Colorado River doctrine. The First Circuit decided abstention was appropriate
because in order to decide whether the insurance policy fell within the safe harbor
provision of the ADA, the federal court had to decide whether the policy violated
state law, a question that was pending in state court. Id. at 10-11. Currie is

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distinguishable because in this case the Plaintiff’s federal claims, while related to
the regulatory claim, are not dependent on that claim.
Finally, the fact that the Plaintiff’s interests will be adequately protected in
state court if he brings his federal law claims in that forum does not speak in favor
of abstention but merely poses no impediment to it. Weighing all the factors, the
Court concludes that a stay under Colorado River is inappropriate.
C. Claim Splitting
The Defendant’s final argument is that the Plaintiff is impermissibly
splitting his claims in violation of the common law bar against claim splitting. The
test for claim splitting is “whether the first suit, assuming it were final, would
preclude the second suit.” Katz v. Gerardi, 655 F.3d 1212, 1218 (10th Cir. 2011). The
cases cited by the Defendant are not persuasive because they involve claims that
were split within the same court.8 The Court concludes that claim splitting is
inapplicable here. However, the Plaintiff should be aware that his choice to bring
his federal claims separate from his 80C petition may have the unintended
consequence that the Plaintiff’s federal claims are precluded by a final judgment in

See Sutcliffe Storage & Warehouse Co. v. United States, 162 F.2d 849 (1st Cir. 1947)
(affirming dismissal of plaintiff’s second, third, and fourth suits against the same defendant in the
same court, each asserting the same claim but for different periods of time); Geary v. Stanley, 931
A.2d 1064, 1067 (Me. 2007) (affirming dismissal of plaintiff’s second suit in same court based on the
same transaction but against a new defendant where second suit was an attempt to circumvent first
suit’s deadline for adding parties); Curtis v. Citibank, N.A., 226 F.3d 133, 140 (2d Cir. 2000)
(affirming dismissal of plaintiffs’ second suit on claim-splitting grounds where plaintiffs brought
second suit against same defendants in same court asserting claims that plaintiffs had attempted to
add to first suit months after the close of discovery, over a year after deadline for amending the
complaint, and after judge forbade further amendments to the complaint); Walton v. Eaton Corp.,
563 F.2d 66, 70-71 (3d Cir. 1977) (affirming district court’s consolidation of plaintiff’s first complaint
and second virtually identical complaint against same defendants in same court); Oxbow Energy, Inc.
v. Koch Indus., Inc., 686 F. Supp. 278, 280-83 (D. Kan. 1988) (dismissing plaintiffs’ claims in a
second action where the same claims were made, and dismissed from, a first action).
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state court. See, e.g. Hoffman v. Sec’y of State of Me., 574 F. Supp. 2d 179, 186-87
(D. Me. 2008) (final judgment in state court petition for review of governmental
action precluded federal suit bringing constitutional challenges to the same action);
Dobson v. Dunlap, 576 F. Supp. 2d 181, 186 (D. Me. 2008) (same).
D. Plaintiff’s Motion to Stay
The Plaintiff asks this Court to stay the federal proceeding pending the
outcome of the state court’s review. If the state court affirms the agency’s decision,
then the issues pending here would be moot. The Plaintiff would be able to live at
home and would not need to pursue his litigation here.
“[T]he power to stay proceedings is incidental to the power inherent in every
court to control the disposition of the causes on its docket with economy of time and
effort for itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248,
254 (1936); see also Microfinancial, Inc. v. Premier Holidays Int’l, Inc., 385 F.3d 72,
77 (1st Cir. 2004) (“It is apodictic that federal courts possess the inherent power to
stay proceedings for prudential reasons.”).
The Court agrees that interests of economy and efficiency for the parties and
the Court support a stay in this case.

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CONCLUSION
The Defendant’s motion to dismiss is DENIED and the Plaintiff’s motion to
stay is GRANTED.

SO ORDERED.
Dated this 26th of March, 2013.
/s/ Nancy Torresen
United States District Judge

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