John Doe v. Maine Board of Osteopathic Licensure , 2020 ME 134 ( 2020 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2020 ME 134
Docket: Ken-20-32
Argued October 6, 2020
Decided: November 17, 2020
Panel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.
JOHN DOE1
v.
BOARD OF OSTEOPATHIC LICENSURE
CONNORS, J.
[¶1] John Doe, DO, filed a three-count complaint against the Maine Board
of Osteopathic Licensure. Two counts seek a declaration pursuant to the Maine
Declaratory Judgments Act, 14 M.R.S. §§ 5951-5963 (2020), that pending
disciplinary complaints against him must be dismissed because the Board did
not provide him the sixty-day notice required by 32 M.R.S. § 2591-A(1) (2020).2
1 We use a pseudonym because “all complaints and investigative records of the licensing boards,
commissions and regulatory functions within or affiliated with the Department of Professional and
Financial Regulation are confidential during the pendency of an investigation. Those records become
public records upon the conclusion of an investigation unless confidentiality is required by some
other provision of law.” 10 M.R.S. § 8003-B(1) (2020).
2 Section 2591-A(1) provides, in relevant part, as follows:
The board shall investigate a complaint, on its own motion or upon receipt of a
written complaint filed with the board, regarding noncompliance with or violation of
this chapter or of rules adopted by the board.
The board shall notify the licensee of the content of a complaint filed against the
licensee as soon as possible, but, absent unusual circumstances justifying delay, not
later than 60 days from receipt of this information. The licensee shall respond within
2
The third count alleges that the Board has generally failed to address the
complaints in a timely manner, as he contends is required under the Maine
Administrative Procedure Act (APA), 5 M.R.S. § 11001(2)(2020).3
[¶2] The Superior Court (Kennebec County, Murphy, J.) granted the
Board’s motion to dismiss Doe’s complaint pursuant to M.R. Civ. P. 12(b)(1)
and (6) for failure to state a claim upon which relief may be granted (Counts 1
and 2) and lack of subject matter jurisdiction (Count 3). We affirm dismissal of
all three counts on the former basis, because section 2591-A does not, as Doe
claims, require the Board to dismiss the complaints against him, and because
he is not entitled to relief for the Board’s allegedly dilatory conduct given the
absence of prejudice to him.
I. BACKGROUND
[¶3] Doe’s complaint alleges the following facts, which we view as though
they were admitted. See Nadeau v. Frydrych, 2014 ME 154, ¶ 5, 108 A.3d 1254.
“The general rule is that only the facts alleged in the complaint may be
30 days. The board shall share the licensee’s response with the complainant, unless
the board determines that it would be detrimental to the health of the complainant to
obtain the response. If the licensee’s response to the complaint satisfies the board
that the complaint does not merit further investigation or action, the matter may be
dismissed, with notice of the dismissal to the complainant, if any.
3 “Proceedings for judicial review of . . . the failure or refusal of an agency to act shall be instituted
by filing a petition for review in the Superior Court . . . .” 5 M.R.S. § 11002(1) (2020).
3
considered on a motion to dismiss and must be assumed as true.” Moody v. State
Liquor & Lottery Comm’n, 2004 ME 20, ¶ 8, 843 A.2d 43.
[¶4] Doe is currently licensed to practice osteopathic medicine. The
Board had, up to the filing of Doe’s complaint, failed to adjudicate nine matters
pending against Doe, with one complaint having been pending for over five
years. Additionally, the Board failed to provide Doe with notice of six of the
complaints against him within the sixty-day statutory deadline in 32 M.R.S.
§ 2591-A(1).
[¶5] Doe filed his complaint on March 26, 2019; the Board filed its motion
to dismiss on April 10, 2019; and the Superior Court granted the Board’s motion
on January 7, 2020. Doe timely appeals. See 14 M.R.S. § 1851 (2020); M.R.
App. P. 2B(c)(1).
II. DISCUSSION
A. Standard of Review
[¶6] In an appeal from an order on a motion to dismiss pursuant to M.R.
Civ. P. 12(b)(6), “[w]e review the legal sufficiency of the complaint de novo,”
Nadeau, 2014 ME 154, ¶ 5, 108 A.3d 1254, and we view the complaint “in the
light most favorable to the plaintiff to determine whether it sets forth elements
of a cause of action or alleges facts that would entitle the plaintiff to relief
4
pursuant to some legal theory.” Johanson v. Dunnington, 2001 ME 169, ¶ 5,
785 A.2d 1244 (quotation marks omitted).4
B. Count 1
[¶7] Count 1 of Doe’s complaint seeks a general interpretation of
32 M.R.S. § 2591-A(1). For example, the count seeks a declaration that the term
“unusual circumstances” included in section 2591-A(1) (see supra n.2) means
“circumstances that are uncommon, rare or atypical, as opposed to common,
usual or typical.”
[¶8] The issue of “whether a declaratory judgment should be issued rests
in the sound discretion of the trial court.” E. Fine Paper, Inc. v. Garriga Trading
Co., 457 A.2d 1111, 1112 (Me. 1983). The Superior Court did not address the
4The Superior Court indicated that it was dismissing the declaratory judgment counts for failure
to state a claim and the APA claim for lack of subject matter jurisdiction. If the defect in the APA claim
were jurisdictional, then we would have to affirm the dismissal on that basis. See Tomer v. Me. Hum.
Rights Comm’n, 2008 ME 190, ¶ 14, 962 A.2d 335. The Board raised two jurisdictional issues as to
Doe’s APA claim: (1) a lack of final agency action or failure to exhaust administrative remedies; and
(2) lack of standing. Because this is a claim of failure to act, the Board’s first argument fails—Doe is
challenging a lack of action, not an affirmative action that is not yet final. With respect to the Board’s
second argument, one could view Doe as not “aggrieved” as required to advance an APA claim under
5 M.R.S. § 11001(1) (2020) because, as discussed infra, he has alleged no prejudice caused by the
Board’s actions. We have interpreted the APA’s “aggrieved” standard for standing to require that the
challenged agency action or inaction operate “prejudicially and directly upon the party’s property,
pecuniary or personal rights.” Lindemann v. Comm’n on Governmental Ethics & Election Prac.,
2008 ME 187 ¶ 14, 961 A.2d 538 (quotation marks omitted). But we view Doe’s complaint as alleging
that the sheer length of time the investigations have been pending render the Board’s inaction
unreasonable within the meaning of the statute, entitling him to relief. We view the question of
whether a subject of an ongoing agency investigation may seek relief under the APA on grounds of
unreasonable delay in the absence of prejudice as a question best addressed under M.R. Civ. P.
12(b)(6).
5
viability of Count 1 separately from Count 2. This was a logical course of action
because Count 2 presents a specific claim generated by Doe’s particular
circumstances, while Count 1 is abstract and generic. See Pilot Point, LCC v.
Town of Cape Elizabeth, 2020 ME 100, ¶ 31, 237 A.3d 200 (declining to issue a
declaratory judgment concerning speculative facts, for it would be an
impermissible advisory opinion). Therefore, the disposition of Count 2 also
disposes of the claim raised in Count 1.
C. Count 2
[¶9] Count 2 asserts that section 2591-A(1) creates a mandatory time
bar similar to a statute of limitations. Based on this interpretation of the
statute, Doe requests a declaration that the Board violated his due process
rights, both procedural and substantive, when it failed to dismiss the
disciplinary proceedings pending against him for which he had not received
notice within sixty days.
1. Statutory Language
[¶10] We review the meaning of a statute de novo. Fuhrmann v. Staples
the Off. Superstore E., Inc., 2012 ME 135, ¶ 23, 58 A.3d 1083. If a statute is
ambiguous, we defer to a state agency’s reasonable interpretation of a statute
it administers. Id. Here, section 2591-A(1) includes a deadline, but it does not
6
indicate what the consequences are for failing to meet that deadline. The Board
argues that the sixty-day notice period is directory, not mandatory, and we
agree.5
[¶11] In the context of agency procedural deadlines, and in the absence
of a clear manifestation in a statute to the contrary, statutory language such as
“shall” is directory, not mandatory, and does not wrest from the agency
jurisdiction to act if the deadline is not met. For example, we held that the
Workers’ Compensation Board had jurisdiction to issue an order after a
statutory twenty-one-day deadline to act had expired, noting that “[w]e do not
create a remedy or penalty when a statute is silent regarding the sanction for
failure of an agency to timely act.” Bureau v. Staffing Network, Inc.,
678 A.2d 583, 590 (Me. 1996). Similarly, we held in Anderson v. Commissioner
of the Department of Human Services that despite the use of the word “must” in
a statute establishing when the Department was required to recoup an
overpayment, “statutory provisions requiring an act to be done within a certain
time are directory and not mandatory or jurisdictional unless the statute
manifests a clear intent to the contrary.” 489 A.2d 1094, 1099 (Me. 1985); see
5 The Board also argues that it did not violate a deadline because its investigations relate to
“reports,” not “complaints,” within the meaning of the statutory scheme. See 32 M.R.S. § 2591-A(1);
24 M.R.S. §§ 2505-2506 (2020). But as noted supra, at this stage of the proceedings, we must assume
that Doe’s allegations referencing pending “complaints” are true.
7
also Guar. Tr. Life Ins. Co. v. Superintendent of Ins., 2013 ME 102, ¶ 39,
82 A.3d 121; Davric Me. Corp. v. Me. Harness Racing Comm’n, 1999 ME 99, ¶ 13,
732 A.2d 289.
[¶12] Title 32 M.R.S. § 2591-A(1), despite the use of the word “shall,”
does not establish a remedy or a penalty for the Board’s failure to adhere to the
sixty-day deadline. Statutes that intend to create a statute of limitations or a
time bar use language to that effect. See, e.g., 14 M.R.S. § 8107(4)(2020) (“No
claim or action shall be commenced against a governmental entity or employee
in the Superior Court unless the foregoing notice provisions are substantially
complied with.”); 24 M.R.S §§ 2902-2903 (2020) (setting a three-year statute
of limitations for professional negligence and requiring the filing of a notice of
claim prior to the commencement of a lawsuit).
[¶13] Indeed, looking at the language in section 2591-A(1) as a whole,
the Legislature was clear as to when dismissal is appropriate: when the Board
determines a complaint lacks merit. See supra n.2. The lack of similar language
with respect to the notice deadline is not dispositive, but telling.
[¶14] In the absence of clear indication that the provision requiring
notice within sixty days is meant to create a statute of limitations after which
time the Board would lose jurisdiction to act on a complaint, we defer to the
8
Board’s reasonable reading of section 2591-A(1) and conclude that the
deadline is directory and does not require a dismissal upon the expiration of
this time period.
2. Constitutional Claims
[¶15] Next, we turn to Doe’s constitutional claims as they relate to
Count 2 of his complaint. Doe alleges both procedural and substantive due
process violations by the Board in its handling of the disciplinary complaints
pending against him.6
a. Procedural Due Process
[¶16] “In a procedural due process challenge, we must first determine
whether the governmental action has resulted in a deprivation of life, liberty,
or property.” Guardianship of Hughes, 1998 ME 186, ¶ 9, 715 A.2d 919. Here,
Doe has a property interest in his existing license, see Munjoy Sporting & Athletic
Club v. Dow, 2000 ME 141, ¶ 11, 755 A.2d 531, but he does not claim to have
6Doe has alluded to both the Maine and United States Constitutions in asserting a due process
violation. In the context of the claims raised here, we find no material difference in the results of the
application of article I, section 6-A of the Maine Constitution from that obtained under the Fourteenth
Amendment of the United States Constitution.
9
been deprived of that license. The pending nature of the Board’s investigations
is not alleged to have adversely affected him in any way.7
[¶17] Instead, Doe alludes to a right to “statutory due process,”
apparently arguing that because he contends the deadline in section 2591-A(1)
is mandatory and requires dismissal, the statute created a protectable property
interest. But, as noted, the statute is not mandatory, so his argument fails on
this ground alone. Additionally, a protectable property interest under the due
process clause is defined by state law, Bd. of Regents v. Roth, 408 U.S. 564, 577
(1972), and there is no property interest in a process. See Jackson v. Town of
Searsport, 456 A.2d 852, 858 (Me. 1983) (“the Town of Searsport’s failure to
follow the statutory procedures for processing his general assistance
applications infringed no constitutionally protected property interest of the
Plaintiff”); Gregory v. Town of Pittsfield, 479 A.2d 1304, 1308 (Me. 1984)
(holding that the failure to follow statutorily prescribed procedures was not a
violation of due process because there is “no property interest in statutory
procedures themselves”); Botting v. Dep’t of Behav. & Dev. Servs., 2003 ME 152,
¶ 23, 838 A.2d 1168 (holding that “[t]he interest in procedure itself is not an
7 At oral argument, Doe’s counsel alluded vaguely to a reciprocal accreditation effect, but the
complaint is devoid of any such allegations, and none was briefed. See Mehlhorn v. Derby,
2006 ME 110, ¶ 11, 905 A.2d 290.
10
interest protected by the Fourteenth Amendment”); see also Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 541 (1985) (“‘Property’ cannot be defined by
the procedures provided for its deprivation any more than can life or liberty.”);
Davila-Lopes v. Zapata, 111 F.3d 192, 195 (1st Cir. 1997) (“The existence of a
detailed set of procedural rules is clearly inadequate to create a constitutionally
protected property right.”).
[¶18] Doe might have a liberty interest in practicing his lawful
occupation. Roth, 408 U.S. at 573; Bd. of Overseers of the Bar v. Lefebvre,
1998 ME 24, ¶ 15, 707 A.2d 69. Doe, however, claims no infringement upon any
such interest. He might also have a due process right to be free from damage to
his reputation. See Doe v. Williams, 2013 ME 24, ¶ 62, 61 A.3d 718 (“The
Supreme Court has articulated the ‘stigma-plus test’ to determine whether
procedural due process rights are implicated when the state imposes a stigma
on an individual that negatively affects his reputation.” (footnote omitted)
(quoting Paul v. Davis, 424 U.S. 693, 709 (1976))). The Board’s proceedings are
confidential, however, and therefore Doe has not alleged any damage to his
reputation.
11
[¶19] In sum, Doe’s procedural due process claim fails as a matter of law
because he has not alleged a deprivation of any protectable property or liberty
interest. See Botting, 2003 ME 152, ¶ 23, 838 A.2d 1168.
b. Substantive Due Process
[¶20] The lack of an adversely affected property or liberty interest
dooms Doe’s substantive due process claim as well.8 That section 2591-A(1)’s
deadline is not mandatory takes the wind out of the sails of Doe’s substantive
due process argument. To state a substantive due process claim, a plaintiff
must allege facts showing that the government has engaged in conduct that
“shocks the conscience and violates the decencies of civilized conduct.”
LeGrand v. York Cnty. Judge of Prob., 2017 ME 167, ¶ 38, 168 A.3d 783 (quoting
Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). Given that Doe has not
even alleged prejudice from the Board’s conduct, his claim cannot begin to meet
this standard. See Pagan v. Calderon, 448 F.3d 16, 33 (1st Cir. 2006) (“the
8 The basic difference between a substantive and a procedural due process claim is that
procedural due process requires that the procedures provided by the state in effecting the
deprivation of liberty or property be adequate in light of the affected interest, while substantive due
process imposes limits on what a state may do regardless of what procedural protection is provided.
See Amsden v. Moran, 904 F.2d 748, 753 (1st Cir. 1990). Both types of due process protections require
deprivation of a liberty or property interest. See Daniels v. Williams, 474 U.S. 327, 331 (1986) (“By
requiring the government to follow appropriate procedures when its agents decide to deprive any
person of life, liberty, or property, the Due Process Clause promotes fairness in such decisions. And
by barring certain government actions regardless of the fairness of the procedures used to implement
them . . . it serves to prevent governmental power from being used for purposes of oppression.”
(quotation marks omitted)).
12
substantive due process doctrine may not, in the ordinary course, be invoked
to challenge discretionary permitting or licensing determinations of state or
local decisionmakers, whether those decisions are right or wrong”); DePoutot
v. Raffaelly, 424 F.3d 112, 119 (1st Cir. 2005) (“Mere violations of state law,
even violations resulting from bad faith, do not necessarily amount to
unconstitutional deprivations of substantive due process.”).
D. Count 3
[¶21] Doe argues in Count 3 that he is entitled to judicial review pursuant
to 5 M.R.S. § 11001(2) because the Board has not acted upon the complaints
against him within a reasonable time. Again, his claim suffers from multiple
flaws.
[¶22] First, the only relief he seeks is dismissal of the complaints and
cessation of the investigations. But section 11001(2) provides that “[t]he relief
available in the Superior Court shall include an order requiring the agency to
make a decision within a time certain.” Id. We have construed this language to
mean that with respect to failure-to-act claims, this is the only relief we can
grant. See E. Me. Med. Ctr. v. Me. Health Care Fin. Comm’n, 601 A.2d 99, 101
(Me. 1992) (“The statute does not authorize sanctions or any other remedy as
being appropriate when a hearing has already been scheduled by the agency;
13
nor do we have the authority to create such a remedy.”). We have held that the
unavailability of a remedy is a sufficient ground for a motion to dismiss for
failure to state a claim. See D & J Assocs. v. Bd. of Env’t Prot., 560 A.2d 4, 4
(Me. 1989) (holding that a complaint filed pursuant to 5 M.R.S. § 11001(2)
failed to state a claim when the court was without authority to grant the only
remedy requested: the granting of a permit by the court when the Board had
not acted on the plaintiff’s application within 105 days).
[¶23] Regarding the sixty-day notice provision, the only relief available
to Doe would be an order requiring the Board to give him notice of the
investigations pending against him. But not only has Doe not asked for this
relief in his complaint, the complaint demonstrates that Doe has already
received actual notice of each complaint.
[¶24] As to the remainder of Doe’s APA claim, it also seeks dismissal of
the investigations because they have been pending for so long. As noted, we
cannot provide the relief he seeks. The only remedy potentially available would
be an order, in the nature of mandamus, requiring the Board to act by a date
certain.
[¶25] An unreasonable agency delay, although not rising to the level of a
constitutional violation, might still violate the APA and require such relief. See
14
5 M.R.S. § 11002(3) (2020) (“petition for review shall be filed within 6 months
of the expiration of the time within which the action should reasonably have
occurred” (emphasis added)); cf. 5 M.R.S. § 9056(1) (2020) (“The opportunity
for hearing in an adjudicatory proceeding shall be afforded without undue
delay.” (emphasis added)).
[¶26] This raises the question of whether delay can become
unreasonable or undue in the absence of prejudice. We have held in a variety
of contexts that a successful action based on undue delay must include a
showing of prejudice caused by the delay. See Seider v. Bd. of Exam’rs of Psychs.,
2000 ME 118, ¶¶ 25-28, 754 A.2d 986 (holding that a two-and-a-half-year gap
between the investigation and hearing was not an undue delay when the party
failed to “demonstrate that she was prejudiced in any way by the delay”); State
v. Cyr, 588 A.2d 753, 756 (Me. 1991) (holding that, in the criminal law context,
when applying due process protections against undue delay Maine has
required a showing of “actual and unjustifiable prejudice resulting from a delay
in seeking an indictment” (quotation marks omitted)); see also United States v.
Eight Thousand Eight Hundred & Fifty Dollars ($ 8,850), 461 U.S. 555, 569-570
(1983) (holding that an eighteen-month delay “in instituting civil forfeiture
proceedings was reasonable” when the plaintiff did not show prejudice caused
15
by the delay). We conclude that a showing of prejudice is required to succeed
in a claim for failure to act under the APA.
[¶27] For these reasons, Doe has failed to state a claim upon which relief
may be granted as to any of his claims, and, therefore, dismissal was proper
pursuant to M.R. Civ. P. 12(b)(6).
The entry is:
Judgment affirmed.
Michael A. Cunniff, Esq. (orally), McCloskey, Mina, Cunniff & Frawley, LLC,
Portland, for appellant John Doe
Aaron M. Frey, Attorney General, and Michael B. Miller, Asst. Atty. Gen. (orally),
Office of the Attorney General, Augusta, for appellee Board of Osteopathic
Licensure
Kennebec County Superior Court docket number CV-2019-66
FOR CLERK REFERENCE ONLY