MS S v. REGIONAL SCHOOL UNIT 72

Filing 105

ORDER ON REMAND ISSUES By JUDGE JON D. LEVY. (akr)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
MS. S., individually and as a parent
and legal guardian of B.S., a minor,
Plaintiff,
v.
REGIONAL SCHOOL UNIT 72,
Defendant,
and
STATE OF MAINE
DEPARTMENT OF EDUCATION,
Intervenor-Defendant.

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2:13-cv-453-JDL

ORDER ON REMAND ISSUES
Ms. S. contends that her son was denied a free appropriate public education as
required by the Individuals with Disabilities Education Act (the “IDEA”), 20 U.S.C.A.
§ 1400, et seq. (2017). After a lengthy procedural history, including a decision by the
U.S. Court of Appeals for the First Circuit remanding this case for further
proceedings, the case now presents a single question of law for decision: whether the
two-year Filing Limitation contained in section XVI.13.E of the Maine Unified Special
Education Regulation (“MUSER”), 05-071 C.M.R. ch. 101, adopted in 2010, is valid.
I conclude that the rule is invalid and that, as a consequence, Ms. S. is entitled to an
additional evidentiary administrative hearing on the portion of her claims that
remain in dispute.

I. FACTUAL AND PROCEDURAL BACKGROUND
A.

Background
As a child, Ms. S.’s son, B.S., experienced developmental delays. Due in part

to those delays, B.S. was enrolled in special education classes on and off throughout
his childhood. As he got older, B.S.’s diagnoses and his individualized education plan
were adjusted several times.

Despite his challenges, B.S. was academically

successful at times. At one point, B.S. consistently earned grades in the mid-90s.
At the start of his ninth grade year, B.S. was enrolled at Fryeburg Academy,
and the school determined that he did not require special education services. As the
year progressed, however, the school re-evaluated B.S.’s needs and moved him to a
“transition program.” B.S. remained at Fryeburg Academy until the middle of his
eleventh grade year, when he transferred to the REAL school, where he completed
his high school education. Throughout his time at Fryeburg Academy, the school readjusted his educational plan several times.
In the appeal taken in this case, the U.S. Court of Appeals for the First Circuit
upheld my earlier decision that B.S. was—with one exception—provided a free
appropriate public education in his eleventh and twelfth grade years in keeping with
the requirements of the IDEA, but overturned my conclusion that Ms. S.’s claims
against Regional School Unit 72 (“the School District”) related to B.S.’s ninth and
tenth grade years were time-barred under MUSER.
B.

Relevant MUSER Rule Changes
The timeliness of Ms. S.’s hearing request as to her son’s ninth and tenth grade

years was affected by changes to the MUSER rules that the Department initiated in
2

2009. MUSER implements the IDEA in Maine. Ms. S. v. Reg’l Sch. Unit 72, 829 F.3d
95, 102 (1st Cir. 2016). Although the IDEA employs its own procedure for requesting
a due process hearing, the federal statute permits variation at the state level. See,
e.g., 20 U.S.C. § 1415(f)(3)(C) (2017) (“A parent or agency shall request an impartial
due process hearing within 2 years of the date the parent or agency knew or should
have known about the alleged action that forms the basis of the complaint, or, if the
State has an explicit time limitation for requesting such a hearing under this
subchapter, in such time as the State law allows.”). Two MUSER rules govern the
due process hearing timeline.

In its decision in this case, the First Circuit

characterized these rules as the “Look-Back Term” and the “Filing Limitation.”
The Look-Back Term is set forth in MUSER § XVI.5A(2), and, as the name
suggests, looks backward by limiting how far back in time a claim may reach once a
parent or district knows or should have known of an asserted violation. MUSER, 05071, C.M.R. ch. 101 § XVI.5.A(2). The rule currently provides a two-year Look-Back
Term:
The due process hearing request must allege a violation that occurred
not more than two years before the date the parent or public agency
knew or should have known about the alleged action that forms the basis
of the due process hearing request.
Id.
The Filing Limitation, set forth in MUSER § XVI.13.E, is forward looking and
specifies the time within which a parent or school district must file a request for a
due process hearing once the parent or district knew or should have known of the
action that is the basis for the request. MUSER, 05-071, C.M.R. ch. 101 § XVI.13.E.
It currently provides a two-year Filing Limitation:
3

A parent or agency must request an impartial hearing on their due
process hearing request within two years of the date the parent or
agency knew or should have known about the alleged action that forms
the basis of the due process hearing request.
Id.
In 2009, MUSER’S Look-Back Term and Filing Limitation were each four
years. They varied from the corresponding federal provisions in the IDEA, which are
each two years. In its decision, the First Circuit explained that these provisions
operate in tandem so that, when both were set at four years,
a parent might have had eight years from the date of an alleged violation
to file an IDEA due process hearing request: the violation could have
taken place up to four years before the parent knew or should have
known about the violation (the look-back term), and then, from the point
at which the parent knew or should have known about the violation, the
parent had another four years to decide if he or she would like to request
a due process hearing (the filing limitation).
Ms. S., 829 F.3d at 103.
In 2009, the State of Maine Department of Education (“the Department”)
simultaneously adopted an emergency rule change and proposed a major substantive
rule change so that the MUSER Look-Back Term and Filing Limitation would align
with the corresponding two-year federal provisions. 5 M.R.S.A. §§ 8072, 8073. While
agencies undertaking a major substantive rule change procedure must wait for
legislative approval before finally adopting proposed changes, 5 M.R.S.A. § 8072, an
emergency rule temporarily takes effect before earning legislative approval, 5
M.R.S.A. § 8073; in that sense, it is a stop-gap, and in this case the Department
employed it to implement its intended rule changes while awaiting legislative

4

approval.1

Both types of rule changes require notifying the public and the

Legislature. 5 M.R.S.A. §§ 8053, 8072, 8073. The following recounting of the relevant
notices issued by the Department is crucial to the outcome of questions presented.
The Department posted several public notices.

In November 2009, the

Department submitted two Notices of Agency Rulemaking Proposals to Maine’s
Secretary of State. The notices summarized the Department’s proposed rules, and
the summaries were disseminated to inform the public and solicit comments before a
public hearing. One notice pertained to the proposed major substantive rule change,
and the other pertained to the emergency rule change. Both notices employed the
same language with respect to changes to the due process hearing timeline, stating
that “pursuant to the Department’s intent not to exceed minimum federal

1 The First Circuit explained how the simultaneous promulgation of emergency rules and proposed rules
operates:

Under MAPA, a state agency seeking to adopt a “major substantive rule” may initiate the
rulemaking process in two ways: by following the standard procedures prescribed for such rules
or by seeking temporary adoption of an “emergency rule.” Me. Rev. Stat. Ann. tit. 5, §§
8072, 8073. The two paths may be pursued simultaneously, which is what occurred
here. See id. Hence, because the MDOE proposed the Filing Limitation as both a major
substantive rule and an emergency rule, we review the MAPA requirements for each.
Although major substantive rules are subject to greater scrutiny than routine technical rules,
the standard rulemaking process begins with the same notice and comment procedures
applicable to such routine rules. See id. §§ 8072, 8052, 8053. In addition, “every major
substantive rule is also subject to legislative review,” as described in MAPA section 8072. Id. §
8072 (preamble); see also id. § 8071.3.B. A major substantive “rule has legal effect only after
review by the Legislature followed by final adoption by the agency.” Id. § 8072.1.
A major substantive rule also may be proposed as an “emergency rule,” i.e., one that “is necessary
to avoid an immediate threat to public health, safety or general welfare.” Id. §§ 8054.1, 8073. If
an agency finds that implementation of a rule meets this standard, it may “modify” the
rulemaking requirements to accelerate “adoption of rules designed to mitigate or alleviate the
threat found.” Id. § 8054.1. Emergency rules, however, are not permanent. In certain
circumstances, an emergency major substantive rule may be effective “for up to 12 months or
until the Legislature has completed review.” Id. § 8073. Thus, at the very least, the Legislature
must review any changes to a major substantive rule adopted through the emergency process to
make such a rule permanent.
Ms. S., 829 F.3d 95 at 105-06. (internal footnote omitted).

5

requirements and to address cost containment . . . the statute of limitations for due
process hearings will be changed to the federal standard of two years.” ECF No. 71
at 4, 5.
Each notice was accompanied by a version of MUSER with strikeouts and
underlines indicating the proposed changes.2 In the proposed changes, the Look-Back
Term’s strikeouts and underlines indicated a change from four years to two, while
the filing deadline provision was untouched. ECF No. 22-1 at 13, 15. Additionally,
MUSER contains an Appendix with a document entitled “Notice of Procedural
Safeguards,” which is used to instruct the public about the rights guaranteed under
MUSER, and it was also revised to reflect the proposed changes. The Notice of
Procedural Safeguards contained strikeouts and underlines that corresponded to the
proposed change to the Look-Back Term from four years to two years:
The due process hearing request must allege a violation whether a State
or federal cause of action under the IDEA that happened not more than
four two years before you or the SAU knew or should have known about
the alleged action that forms the basis of the due process hearing
request.
ECF 22-1 at 17. The Filing Limitation was addressed in the “Due Process Hearing
Procedure” section of the Notice of Procedural Safeguards. It indicated two nonsubstantive corrections and did not show any change to the four-year Filing
Limitation:

2 There are three versions of the proposed MUSER rule changes in the administrative record which are identical
except for their paginations and cover sheets. Per the cover sheets, these versions are: (1) “Proposed Emergency
Refinements,” ECF No. 22-1 at 1-19, which accompanied the proposed emergency rule changes, (2) “Proposed for
Provisional Adoption,” ECF No. 71-6 at 19-23, which reflected the proposed major substantive rule changes, and
(3) “Emergency Regulation,” ECF No. 71-5 at 15-19, which is the version of MUSER that went into effect when
the agency adopted the emergency rule changes. For ease of reference, throughout this opinion I will refer
exclusively to the Proposed Emergency Refinements when discussing the proposed MUSER changes, unless
otherwise specified.
6

You or the SAU must request an impartial hearing on a due process
hearing request within –four years of the date you or the SAU knew or
should have known about the issue addressed in the hearing request.
ECF 22-1 at 19.
Thus, both the MUSER Filing Limitation and the explanation of that rule in
the Notice of Procedural Safeguards did not indicate any changes to the substance of
the four-year Filing Limitation.
Altogether, the public notice generated over 200 written and in-hearing
comments. The commenters largely employed a comment form circulated by the
Department.

The form had three headings—“proposed change,” “support,” and

“oppose.” For each proposed change, commenters could circle “support” or “oppose,”
and they could make additional comments. With respect to the due process hearing
timeline, the comment sheet characterized the proposed change as follows:
ҤXVI(5)(A)(3) The statute of limitations for due process hearings will be changed to
the federal standard of two years, Page 161.” See, e.g., ECF No. 71-1 at 12 (emphasis
in original) (referring to the provisional adoption document). A commenter who
turned to Page 161 of the provisional adoption proposal would find the revised twoyear Look-Back Term, but not the four-year Filing Limitation, which appeared at
page 171 and was unchanged.
When the Legislature considered the MUSER revisions, it had access to the
public notices, the accompanying versions of the rules, the public comments, and
additional notice forms. Specifically, the Department provided Legislature-specific
notice by way of a “Rule Making Fact Sheet” that summarized significant aspects of
the proposed rule changes for the Legislature’s consideration. With respect to the
7

due process hearing timeline, the emergency rule change and the major substantive
rule change fact sheets stated that “the statute of limitations for due process hearings
will be changed to the federal standard of two years.” ECF No. 71-4 at 26, ECF No.
71-5 at 30. Neither fact sheet provided any additional explanation as to what was
meant by “statute of limitations.”
The Maine Legislature approved the MUSER changes in 2010.

After

receiving approval, the Department finally adopted the rules. See 5 M.R.S.A. § 8052.
In doing so, the Department unilaterally changed the Filing Limitation—MUSER §
XVI.13.E—from four years to two years. See Dep. of Educ., State of Me., 05-071 ch.
101, Maine Unified Special Education Regulation, Birth to Age Twenty, Final
Adoption 2010, 162 (2010). As a result, when Ms. S. submitted her due process
hearing request in May 2013, as B.S. was about to complete the twelfth grade, a twoyear Filing Limitation was ostensibly in effect.
C.

Procedural History
Ms. S.’s hearing request asserted that the School District failed to give B.S. a

free appropriate public education in each of his high school years, thereby violating
the IDEA.3 At the conclusion of the ensuing hearing, the Hearing Officer dismissed
Ms. S.’s claims as to the ninth and tenth grade years because the alleged violations
were, respectively, three and four years old at the time the hearing request was made,
and the Hearing Officer concluded that MUSER’s two-year Filing Limitation barred

3

The IDEA guarantees all students a free appropriate public education. See Endrew F. v. Douglas Cty Sch.
Dist., 137 S. Ct. 988, 1001 (2017) (finding that the IDEA requires an educational program that is offering more
than de minimis progress from year to year, so the educational plan must be reasonably calculated to enable a
child to make appropriate progress in light of the child’s circumstances).
8

the claims. The Hearing Officer also ruled that the School District had provided B.S.
a free appropriate public education during his eleventh and twelfth grades, except for
a single violation in the eleventh grade.4
Ms. S. appealed the hearing officer’s decision to this court. See 20 U.S.C.
§ 1415(i)(2)(A) (providing that “[a]ny party aggrieved by the findings and decision
made under [the impartial due process hearing subsection of the IDEA] . . . shall have
the right to bring a civil action with respect to the complaint presented . . . in a district
court of the United States.”). Based in part on a Recommended Decision of U.S.
Magistrate Judge John H. Rich III, I concluded that MUSER’s two-year Filing
Limitation was valid and that the Hearing Officer had correctly ruled that Ms. S.’s
claims related to her son’s ninth and tenth grade years were time-barred. I also
upheld the Hearing Officer’s decision regarding B.S.’s eleventh and twelfth grade
years.
On appeal, the Court of Appeals affirmed my decision as to B.S.’s eleventh and
twelfth grade years, but vacated my ruling that the two-year Filing Limitation was
valid and Ms. S.’s claims regarding the ninth and tenth grades were time-barred. The

4 The Filing Limitation’s validity does not affect the timely eleventh and twelfth grade claims. See Ms. S., 829
F.3d 95 at 113. In those claims, Ms. S. unsuccessfully argued that B.S. did not receive a free appropriate public
education during his eleventh and twelfth grade years. Id. at 114-115. With respect to the eleventh grade, Ms. S.
had two claims: (1) she claimed that “B.S. did not receive adequate social skills instruction” and (2) “his mid-year
placement in [a new school, called “the REAL School,” following an expulsion from Fryeburg Academy] ‘was not
reasonably calculated to provide him with meaningful benefit.’” Id. at 114. With respect to the twelfth grade, Ms.
S. asserted the same arguments about B.S.’s placement in the REAL school. Id. at 115. I adopted the Magistrate
Judge’s recommended decision, thereby affirming the Hearing Officer’s finding of one violation during the two
years in question: for about a month after B.S.’s expulsion from Fryeburg Academy, the state failed to provide
him with a free appropriate public education. Ms. S. v. Reg'l Sch. Unit 72, No. 2:13-cv-453, 2015 WL 1486757, at
*19 (D. Me. Mar. 31, 2015) (aff'd in part, vacated in part, 829 F.3d 95 (1st Cir. 2016)). The First Circuit affirmed
my finding that, at all other times throughout the eleventh and twelfth grades, B.S. received a free appropriate
public education. Ms. S., 829 F.3d 95 at 100.

9

case was remanded for a redetermination of that issue.5 I subsequently granted the
Department leave to intervene. Thereafter, the Department, Ms. S., and the School
District compiled and submitted a more complete record of the rulemaking
proceedings relating to the Department’s adoption of the MUSER changes in 2010.
ECF No. 56, No. 71.
II. LEGAL ANALYSIS
I first address (A) whether, as the School District contends, the Look-Back
Term and Filing Limitation are the same and should be treated as a single time limit,
or whether the terms are distinct and must stand on their own when judged against
the Maine Administrative Procedure Act (“MAPA”), 5 M.R.S.A. § 8001, et seq.,
requirements; and then consider (B) whether the Department’s adoption of the twoyear Filing Limitation survives judicial review under MAPA by (1) satisfying the

5

The First Circuit provided the following direction:
In sum, we conclude that the district court did not properly evaluate the validity of the two-year
filing limitation under MAPA’s prescribed rulemaking procedures. The district court did not
address the notice issue raised by Ms. S. as to the original 2009–2010 rulemaking. In addition,
it made three errors when evaluating the 2009–2010 rulemaking’s compliance with MAPA’s
legislative review requirements: (1) it erroneously analyzed certain materials regarding the
Legislature’s intent; (2) it concluded that subsequent rulemakings cured defects in the original
2009–2010 rulemaking; and (3) it did not apply a MAPA-provided review standard to legislativereview-stage violations of the rulemaking process.
We recognize that, despite these errors, the court’s ultimate conclusion—that the two-year filing
limitation is valid—could be correct. However, we are unable to affirm that judgment in light of
the district court’s incomplete analysis, the parties’ deficient briefing, and the murky record
before us. We thus remand the case to the district court to reevaluate the validity of the twoyear filing limitation.
On remand, the district court’s resolution of the validity of the two-year filing limitation rule
should apply the MAPA-provided judicial review framework.

Ms. S., 829 F.3d 95 at 112-13.

10

notice and hearing requirements under 5 M.R.S.A. § 8053 and § 8057, and (2)
satisfying MAPA’s legislative review requirements under 5 M.R.S.A. § 8072.
A.

The Look-Back Term and Filing Limitation are Different
The School District and the Department argue that the Look-Back Term and

the Filing Limitation—despite being separate, differently worded rules—mean the
same thing and establish a single deadline. This argument relies on decisions from
the Third Circuit and Ninth Circuit Courts of Appeals that addressed the two sections
of the IDEA which correspond to the two MUSER rules. See G.L. v. Ligonier Valley
Sch. Dist. Auth., 802 F.3d 601 (3rd Cir. 2015), Avila v. Spokane Sch. Dist. 81, 852
F.3d 936 (9th Cir. 2017). In both cases, the courts concluded that Congress intended
to establish a single limitation period—the Filing Limitation—and the different
wording was a mistake resulting from miscommunications when the House and
Senate reconciled the IDEA. Thus, in G.L., the Third Circuit reasoned that,
when we look to the [Filing Limitation’s] surrounding words and
provisions and their context, and apply the cardinal rule that a statute
is to be read as a whole, it is clear that [the Look-Back Term provision],
though poorly penned, was intended merely as a synopsis of [the Filing
Limitation’s] statute of limitations [rather than as a second, different
statute of limitations].
802 F.3d at 617-18 (internal quotations and citations omitted).
The Department and School District reason that because the MUSER rules are
modeled after their federal analogs in the IDEA, the MUSER rules should be
similarly construed. Thus, they contend, the legislative approval for reducing the
Look-Back Term from four years to two years—considered in conjunction with the
rulemaking notices’ explanation of the Department’s intention to adopt a two-year
“statute of limitations” for IDEA hearing requests—provided ample justification for
11

the Department’s revision of the Filing Limitation from four years to two, so that the
rule would be in sync with the revised two-year Look-Back Term and would be
consistent with a two-year statute of limitations, as intended. This argument cannot
be squared, however, with the First Circuit Court of Appeals’ decision in this case.
The First Circuit’s decision viewed the MUSER Look-Back Term and Filing
Limitation rules as separate, “unambiguous” provisions. See Ms. S., 829 F.3d at 110
(“Ordinarily, the [Maine] Law Court does not look beyond language approved by the
Legislature to determine the Legislature’s intent where, as here, the language is
unambiguous.”). It also explained why the two rules should be read as establishing
different standards that operate together to give parents sufficient time to make an
informed judgment about whether they want to pursue an IDEA claim.
We disagree that logic requires either identical timelines for both the
Look-Back Term and the Filing Limitations or a longer timeline for the
Look-Back Term. While a longer Filing Limitation would not mirror the
federal regulatory scheme, it could reflect a plan to give parents more
time for at least one stage of the process. Indeed, it does not strike us
as illogical to give parents more time to consult with counsel, consider
their options, and decide how to proceed once they are aware that a
violation took place. The court therefore erred in finding an illogical
outcome that required the court to examine legislative intent.
Id. 879 F.3d at 111 (emphasis added).
The First Circuit’s interpretation of the MUSER rules stands in marked
contrast with the Third Circuit’s opinion in G.L., which found the analogous
provisions in the IDEA to be ambiguous and, therefore, found it necessary to examine
the IDEA’s legislative history in an effort to understand and reconcile the two
requirements, codified at 20 U.S.C. §§ 1415(b)(6)(B) and (F)(3)(C).
explained:
12

The Court

Here, the language, context, and structure of § 1415 lead inexorably to
one conclusion: § 1415(b)(6)(B), [IDEA’s Look-Back Term], was intended
to reflect the same statute of limitations set forth in § 1415(f)(3)(C) [, the
IDEA’s Filing Limitation]. To the extent that some of its language
appears to conflict with that conclusion, the legislative history confirms
what is apparent from our analysis of the statute itself. That is, the
inconsistent language reflects nothing more than a drafting error in the
reconciliation process, turning a passage that was at each stage in the
legislative process thought to be a statute of limitations into something
that both contravenes congressional intent and renders the statute
illogical.
G.L., 802 F.3d at 625 (emphasis added).

The Ninth Circuit reached a similar

conclusion in Avila, finding that the IDEA’s Look-Back Term, “though poorly penned,
was intended merely as a synopsis of [the IDEA’s Filing Limitation’s] ‘knew or should
have known’ benchmark for a statute of limitations.” 852 F.3d at 942 (quoting G.L.,
802 F.3d at 618).
The Department and School District contend that because the First Circuit
never considered the interplay between the two IDEA provisions that correspond to
the two MUSER rules at issue here, I am not bound to adopt the First Circuit’s
construction of the rules as separate, unambiguous logical provisions. I find this
contention unpersuasive.6
The First Circuit’s decision recognized that MUSER’s Filing Limitation may
be longer than the corresponding federal scheme and need not mirror that scheme.
See Ms. S., 829 F.3d at 111 (“While a longer Filing Limitation would not mirror the

6

The School District could have urged the Court of Appeals to consider the legislative history of the IDEA in
interpreting the MUSER rules, but it failed to do so. The Third Circuit decided G.L. v. Ligonier Valley School
District Authority in September, 2015. 802 F.3d 601 (3rd Cir. 2015). Although the appellate briefs in Ms. S. were
submitted to the First Circuit in the spring and summer of 2015, the First Circuit issued its decision in Ms. S. in
July, 2016. There was ample time for the School District to have sought to file a supplemental brief addressing
the G.L. decision.
13

federal regulatory scheme, it could reflect a plan to give parents more time for at least
one stage of the process.”). This is in keeping with the IDEA, which expressly
authorizes the states to adopt an “explicit time limitation for requesting a hearing”
that is different than the time in the IDEA itself. See 20 U.S.C. § 1415(f)(3)C).
Thus, even if, as G.L. and Avila determined, states may adopt a single Filing
Limitation under the IDEA, states are not compelled to do so and may adopt rules
that result in a longer horizon within which hearing requests may be made. Under
the law of the case doctrine, “when a court decides upon a rule of law, that decision
should continue to govern the same issues in subsequent stages in the same case.”
Arizona v. California, 460 U.S. 605, 618 (1983); see also United States v. Matthews,
643 F.3d 9, 13 (1st Cir. 2011) (“The law of the case doctrine . . . prevents relitigation
in the trial court of matters that were explicitly or implicitly decided by an earlier
appellate decision in the same case.” (internal citations omitted)). The First Circuit’s
construction of the MUSER rules in this case, as the law of the case, is controlling.
The Department and School District’s wish to have that construction reconsidered
must be addressed to the Court of Appeals, not the District Court.
Because the First Circuit’s decision is binding circuit precedent establishing
that MUSER’s Look-Back Term and Filing Limitation rules are unambiguous and
establish separate time limits, they cannot be conflated. Accordingly, the validity of
the Department’s 2010 revision of the four-year Filing Limitation rule to two years,
made after the Legislature completed its review of the proposed MUSER rule
changes, is an action that must stand on its own when judged against MAPA’s
requirements for the promulgation of administrative rules.
14

B.

Judicial Review Under MAPA
Ms. S. alleges violations of MAPA’s rulemaking requirements that involve two

different standards of judicial review.
First, Ms. S. alleges that the Department’s failure to properly notify the public
of the rule change constituted a MAPA violation that affected public participation, 5
M.R.S.A. §§ 8053, 8057. Section 8057 provides that, if an agency violates the Notice
Section (5 M.R.S.A. § 8053), and the violation is more than an “insubstantial
deviation,” then the rule is “void and of no legal effect.” 5 M.R.S.A. § 8057.
Second, Ms. S. alleges that the Department’s failure to obtain proper
legislative approval for the rule change constituted “other” procedural error, which is
MAPA’s catch-all category for violations that do not have an otherwise specified level
of review. 5 M.R.S.A. § 8058. Procedural error violations trigger a harmless error
analysis. Ms. S., 829 F.3d at 107-8. Errors are harmful—and therefore invalidate
the challenged rule—only where they are “substantial and related to matters of such
central relevance to the rule that there is a substantial likelihood that the rule would
have been significantly changed if the error had not occurred.” 5 M.R.S.A. § 8058.
I first address (1) whether the Department’s rulemaking notices were deficient
and, if so, whether they were an insubstantial deviation from the notice
requirements, and then consider (2) whether the legislative review of the proposed
rules that occurred was in error, and, if so, whether the error was harmful.

15

1.

Rulemaking Violations Related to Notice and Hearing Requirements
under 5 M.R.S.A. §§ 8053 and 8057
Ms. S. first alleges that the 2010 change to the Filing Limitation violated

MAPA’s requirements regarding the notice an agency must provide as part of the
rulemaking process as set forth in 5 M.R.S.A. § 8053.
Four separate provisions in the Notice Section require copies of proposed rules
to be made available to the public: First, section 8053(3)(D) requires that the Notice
“[i]f possible . . . indicate where a copy of the proposed rule can be obtained.”
5 M.R.S.A. § 8053(3)(D). Second, section 8053(3-A) requires that “[a]t least 20 days
prior to hearing on any proposed rule and at least 20 days prior to the comment
deadline of any rule without a hearing, the agency shall make copies of the proposed
rule available in writing or, with agreement of the requestor, electronically to persons
upon request.” 5 M.R.S.A. § 8053(3-A). Third, section 8053(6) requires that “[a]n
agency, on its publicly accessible website, shall either post its proposed and adopted
rules or provide a link to the proposed or adopted rules posted on the Secretary of
State’s website.” 5 M.R.S.A. § 8053(6). Finally, section 8053(7)(E) requires that
agencies providing notice in a newspaper “[p]rovide the website address where the
long notice pursuant to subsection (3) is posted,” which, again, requires the agency to
“indicate where a copy of the proposed rule can be obtained.”

5 M.R.S.A. §§

8053(3)(D), 8053(7)(E).
Here, the Department first provided notice of its emergency and provisionally
adopted MUSER rules on December 2, 2009. The notice stated that “[t]he statute of
limitations for due process hearings will be changed to the federal standard of two
16

years,” but the notice was not accompanied by the revised rule setting forth the twoyear Filing Limitation that the Department ultimately adopted. This omission thus
violated the requirement that agencies make copies of the proposed rule changes
available to the public.
As I have noted, rule changes made in violation of the process prescribed in
section 8057 are “void and of no legal effect, except that insubstantial deviations from
the requirements of [the Notice Section] do not invalidate the rule subsequently
adopted.” 5 M.R.S.A. § 8057. In assessing the substantiality of the deviation that
occurred here, I begin by recognizing that the purpose of notice is, in large measure,
to inform the public of what the agency intends to change and to provide the public a
meaningful opportunity to comment. Here, the public was not provided the text of
the rule the Department wished to adopt and, thus, the public did not have a
meaningful opportunity to comment. The School District and the Department argue
that this omission should be excused because the written comments that are part of
the Administrative Record demonstrate that despite the Department’s failure to
indicate the change in the Filing Limitation rule itself, the public understood that the
Look-Back Term and the Filing Limitation would both be two years.
It is true that the written comments that were received made no mention of
either the Look-Back Term or Filing Limitation rules. It is also true that nearly all
of the commenters used the form circulated by the Department, which instructed the
commenter to circle “support” or “oppose” with reference to the following:
ҤXVI(5)(A)(2) The statute of limitations for due process hearings will be changed to
the federal standard of two years, Page 161.” See, e.g., ECF No. 71-1 at 12 (emphasis
17

in original). If commenters turned to Page 161 of the provisional adoption proposal,
they would find the revised Look-Back Term.
The absence of comments explicitly addressing the Filing Limitation change
from four years to two years is not surprising given that the proposed MUSER rules
did not describe such a change in the notice or in the Filing Limitation rule, nor did
the proposal direct commenters to the page the Filing Limitation appeared on as it
did with respect to the Look-Back Term. Given such lack of support in the record,
the Department and School District’s argument that the public must have
“understood” what the Department actually intended is no more than speculation.
What is certain from the Administrative Record is that a straightforward
violation of the notice requirements occurred because the Department was obligated
to provide the public with a copy of the rule showing the proposed change to the Filing
Limitation rule, but failed to do so. When the Department then changed the rule
anyway—without first having made a copy of the revised rule available to the public
and the Legislature—it substantially deviated from the requirements of the Notice
Section.
In sum, MAPA’s Notice Section requires agencies to provide the public access
to a proposed rule. See 5 M.R.S.A. §§ 8053(3)(D), 8053(3-A), 8053(6), 8053(7)(E).
Posting a proposed rule with a Filing Limitation substantively different from the
finally adopted rule (four years versus two years) violated that requirement and
cannot be fairly excused as an insubstantial deviation. Applying the judicial review
standard required by section 8057, I conclude that the Department substantially

18

deviated from the notice requirements and, therefore, the Filing Limitation was “void
and of no legal effect.” 5 M.R.S.A. § 8057.
2.

Rulemaking Violations Related to Legislative Review Requirements
under 5 M.R.S.A. § 8072
Ms. S. also alleges a MAPA violation in the second category, “any other

procedural error.” 5 M.R.S.A. § 8058. She argues that the change the Department
made to the Filing Limitation after the Legislature reviewed the MUSER rules was
a procedural error under MAPA § 8072 (“the Legislative Review Section”). 5 M.R.S.A.
§ 8072.
Legislative review is required when an agency changes or creates a “major
substantive rule,” as opposed to a “routine technical rule.” 5 M.R.S.A. § 8072. The
MUSER rules qualify as major substantive rules. See 20-A M.R.S.A. § 7005(1) (“The
commissioner is authorized to adopt rules necessary for the administration of this
chapter and chapters 303 and 305. These rules are major substantive rules as defined
in Title 5, chapter 375, subchapter 2-A.”) Violations of the Legislative Review Section
are considered “other procedural errors” under MAPA. Ms. S., 829 F.3d at 108.
Under the Legislative Review Section, an agency provisionally adopting a rule
must submit “[t]he full text of the rule provisionally adopted by the agency [to the
Legislature] with new language underlined and with the language to be deleted from
any existing rule stricken through but clearly legible[.]” 5 M.R.S.A. § 8072(2)(A). The
provisionally adopted rule is then subject to committee review and, finally, subject to
action by the full Legislature. 5 M.R.S.A. § 8072(4)-(8). “A provisionally adopted rule
. . . may not be finally adopted by an agency unless . . . [l]egislation authorizing the
19

adoption . . . is enacted into law” or if “[t]he agency submits the rule . . . and the
Legislature fails to act on the rule [during the legislative rule acceptance period].” 5
M.R.S.A. § 8072(11).
Here, the Department submitted a copy of the proposed MUSER rules
indicating changes with strikeouts and underlines. The initial submission entitled
“2009 Proposed Emergency Refinements” included the text of the MUSER rules, as
well as the Appendix consisting of the revised “Notice of Procedural Safeguards”
setting forth the “Due Process Hearing Procedure” in a form that would eventually
be distributed to interested parties. The Appendix also showed proposed changes
with strikeouts and underlines. As I have explained, in both the proposed rules and
the accompanying updated Notice of Procedural Safeguards, the Look-Back Term was
changed from four years to two years. The Filing Limitation provision was untouched
in the rule text. In the Notice of Procedural Safeguards, the explanation of the filing
deadline indicated two minor changes as to form, but left the timeline at four years.
A reader could logically conclude from the Notice of Procedural Safeguards that the
drafters had looked at the provision, considered what changes were necessary, and
decided to make only minor, non-substantive adjustments.
Because the filing deadline provision was unchanged, a provisionally adopted
rule establishing a two-year Filing Limitation was never subject to committee review
or approval by the full Legislature. Therefore, the Department was without authority
to replace the existing four-year rule with a two-year Filing Limitation rule. See 5
M.R.S.A. § 8072(1) (stating that rules have “legal effect only after review by the
Legislature followed by final adoption by the agency.”).
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Violations of MAPA’s legislative review requirements are subject to harmless
error analysis.7 As I have noted, an error is harmful, and therefore invalid, only if
the error is “substantial and related to matters of such central relevance to the rule
that there is a substantial likelihood that the rule would have been significantly
changed if the error had not occurred.” 5 M.R.S.A. § 8058. The School District
contends that the violations were harmless because “in the spring of 2010, everyone
involved in the rulemaking process . . . believed MUSER contained a single statute of
limitations that had just been changed from four years to two.” ECF No. 99 at 16.
The contention that the unilateral rule change was harmless error is unpersuasive
for three reasons.
First, as previously explained, any person who read the notice and the
proposed MUSER rules could have reasonably concluded that there was no need to
comment on the Filing Limitation rule specifically because the proposed rules implied
that the four-year Filing Limitation would remain unchanged. It is not reasonable
to infer from the record that “everyone” understood the term “statute of limitations”
to encompass the Filing Limitation.

7 In its decision, the First Circuit identified harmless error review as the appropriate standard for analyzing an
“other procedural error” violation, such as a violation of the Legislative Review Section:

If a court finds either of the first two types of violations [i.e., exceeded rulemaking authority or
violated § 8057], the court must hold the rule invalid. In a case dealing with the third type of
MAPA violation—“any other procedural error”—the court may find the rule invalid only if the
procedural error is substantial and “of such central relevance to the rule that there is a
substantial likelihood that the rule would have been significantly changed if the error had not
occurred.” The Maine Law Court has described the “substantial likelihood” standard as “a
harmless error standard similar to that employed in ordinary civil litigation.
Ms. S., 829 F.3d at 107-8 (internal citations omitted).
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Second, under MAPA, the Legislature does not review and approve an agency’s
rulemaking notices; rather, it reviews and approves (or disapproves) the proposed
rules themselves, so even if there was sufficient notice of a change to the Filing
Limitation, the deficient proposed copy of the rules was a substantial violation. Here,
the Legislature never received a proposed rule that reduced the four-year Filing
Limitation to two years.
Finally, by its vote, the Legislature actually approved the rule establishing a
four-year Filing Limitation. The Department’s final adoption of a two-year Filing
Limitation was a substantial error because the filing limitation it adopted was
substantially different insofar as it was two years longer than the rule approved by
the Legislature.
Because

the

Department’s

violations

of

MAPA’s

legislative

review

requirements associated with the unilateral adoption of a two-year Filing Limitation
were substantial and not harmless, I conclude, in accordance with section 8058, that
the change was void and of no legal effect.
III. CONCLUSION
“An agency must comply with the [M]APA before it adopts a rule; otherwise
the rule has no legal effect.” Roderick v. State, 79 A.3d 368, 371 (Me. 2013) (quoting
Mitchell v. Me. Harness Racing Comm’n, 662 A.2d 924, 926 (Me. 1995)); if a rule is
void, it is “of no effect whatsoever . . . an absolute nullity.” Void, BLACK’S LAW
DICTIONARY (10th ed. 2014). In addition, the Department’s noncompliance with
MAPA’s legislative review requirements cannot be excused as harmless error.

22

Because the Department’s final adoption of a two-year Filing Limitation in
2010 was void and of no legal effect, the pre-existing four-year filing deadline was in
effect at the time Ms. S. requested a due process hearing.8 The Hearing Officer
therefore erred by concluding that Ms. S.’s claim as to the ninth and tenth grades
were untimely by failing to receive evidence regarding those grades. Accordingly, the
Hearing Officer’s decision to exclude evidence as to B.S.’s ninth and tenth grade years
is VACATED and this case is REMANDED to the Hearing Officer for further
proceedings consistent with this decision.
SO ORDERED.
Dated: This the 20th day of November, 2017.
/s/ JON D. LEVY
U.S. DISTRICT JUDGE

To treat the 2010 change to the Filing Limitation as having terminated the existing rule, as the
Department and School District contend, would afford the change a major “legal effect” contrary to 5
M.R.S.A. § 8057. See New England Whitewater Ctr. v. Dep’t of Inland Fisheries and Wildlife, 550 A.2d
56, 64 (Me. 1988) (remanding for further proceedings consistent with the rule that was in place prior
the adoption of a non-compliant rule); see also Cumberland Farms N., Inc. v. Maine Milk Comm’n, 428
A.2d 869, 878 (Me. 1981) (concluding that a milk price order adopted by the Maine Milk Commission
failed to comply with MAPA and that the process would “be governed by the last order of the
Commission which is valid.”).
8

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