NASS v. MAINE BOARD OF LICENSURE IN MEDICINE

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

MERYL J. NASS, M.D., )

)

Plaintiff, )

)

V. ) 1:23-cv-00321-LEW

)

MAINE BOARD OF LICENSURE )

IN MEDICINE et al., )

)

Defendants.

ORDER ON DEFENDANTS’ MOTION TO DISMISS

The Maine Board of Licensure in Medicine (the “Board”) conducted disciplinary

proceedings against Meryl J. Nass, M.D., for making public statements about COVID-19,

its treatment, and the federal response to the pandemic that were inconsistent with its stated

position barring physicians from spreading “COVID-19 vaccine misinformation.”

Complaint ¶ 17 (ECF No. 1). The Board suspended Dr. Nass’s license to practice medicine

during those proceedings, which are ongoing. Nass initiated this matter to bring federal

and state constitutional claims and a state statutory claim against the Board and several of

its members (the “Individual Defendants”).1 The matter is now before the Court on the

Defendants’ Motion to Dismiss (ECF No. 14). Because Younger abstention restrains me

from exercising jurisdiction over this matter while the Board’s disciplinary proceedings

1 The Individual Defendants are: Maroulla S. Gleaton, M.D.; Holly Fanjoy, M.D.; Noah Nesin, M.D.; Renee

Fay-LeBlanc, M.D.; Brad E. Waddell, M.D.; Gregory Jamison, RPh; Noel Genova, PA; Lynne M.

Weinstein; and Susan Dench.

remain ongoing, I grant in part the Defendants’ Motion, as outlined in the conclusion of

this order.

BACKGROUND

This background narrative is drawn principally from the Complaint and its

attachments, and the allegations found in the Complaint are taken as true for the purpose

of evaluating the motion to dismiss. García-Catalán v. United States, 734 F.3d 100, 102

(1st Cir. 2013); see also Trans-Spec Truck Serv., Inc. v. Caterpillar, Inc., 524 F.3d 315,

321 (1st Cir. 2008) (“Exhibits attached to the complaint are properly considered part of the

pleading ‘for all purposes,’ including Rule 12(b)(6).” (quoting Fed. R. Civ. P. 10(c))); cf.

Gonzalez v. United States, 284 F.3d 281, 288 (1st Cir. 2002) (“The attachment of exhibits

to a Rule 12(b)(1) motion does not convert it to a Rule 56 motion.”). The background

narrative is also informed by information related to the progress of the state proceedings,

provided by the Office of the Maine Attorney General in advance of oral argument on the

Motion to Dismiss. (See ECF No. 20.)

Meryl J. Nass is a medical doctor who resides in Ellsworth, Maine. The Maine

Board of Licensure in Medicine first licensed Dr. Nass to practice medicine in 1997.

During the pandemic, Nass commented publicly about subjects related to COVID-19. She

criticized the government’s handling of the pandemic, including what she viewed as the

“suppression of effective medications to treat COVID-19,” like ivermectin and

hydroxychloroquine. Compl. ¶ 30. Nass also questioned the safety of vaccines and the

efficacy of mask mandates. Nass disseminated her opinions online, through her blog and

on Twitter, over the radio, in testimony to state legislatures, and in conversation with other

state-level officials.

In the fall of 2021, the Board issued a “Position Statement” explaining that licensees

could face disciplinary action for spreading “misinformation and disinformation” about

COVID-19 vaccines. Compl. ¶ 17. The Position Statement endorsed a statement issued

by the Federation of State Medical Boards (“FSMB”)2 that identified license suspension

and revocation as potential consequences for spreading COVID-19 misinformation. The

Position Statement also featured several links to “resources for physicians [from the

American Medical Association] that explain how to counter misinformation, and why it is

important to do so.” Compl. ¶ 17. The viewpoints that Nass expressed about COVID-19

frequently “conflicted with those asserted in the Position Statement and the resources the

Position Statement identifies as useful.” Compl. ¶ 31.

On or about October 26, 2021, the Board received a complaint that Nass was

spreading misinformation in a video and on her website. A day later, the Board issued a

notice of complaint to Nass and directed her to respond.3 The Board received a second

2 The Complaint describes the Federation of State Medical Boards as a “private organization with no

regulatory authority and its own private agenda” and explains that the Chair of the Maine Board of

Licensure in Medicine has “close ties” to the organization, including a “policy-setting leadership position.”

Compl. ¶¶ 23, 25, 101. The Chair of the Board has twice denied requests to disqualify herself from Nass’s

disciplinary proceedings.

3 After receiving the notice, Nass questioned the Board’s authority to investigate the complaint, which she

characterizes as focusing on “a statement made in her private life.” Compl. ¶ 35. An Investigative Secretary

for the Board responded in part as follows:

The basis here for the Board’s jurisdiction is that there is alleged unprofessional conduct,

particularly where you have communicated in your capacity as a physician in the interview

and on the website that could allow for patients and the public to view the information you

provide as misleading and/or inaccurate.

Compl. Ex. 1 at 1 (ECF No. 1-1).

complaint about Nass on November 7, 2021. Supplementing those complaints were notes,

prepared and submitted by attorneys at the Office of the Maine Attorney General,

summarizing Nass’s comments before the Maine Board of Pharmacy on November 7,

2021, urging it to reconsider guidance on dispensing ivermectin.

The Defendant Board met in executive session on January 11, 2022, with Nass

attending as an observer. The Board discussed the two complaints against Nass, which one

Board member, Defendant Fay-LeBlanc, summarized as “focus[ing on] unprofessional

conduct due to the spreading of misinformation about COVID-19—primarily on social

media.” Compl. ¶ 49. The Board also discussed three new “Assessment and Direction”

matters concerning Nass: two arising from mandated reports from health providers and a

third involving a communication from Nass to the Board.4 Compl. ¶ 48. The Board voted

unanimously to “further investigate” the allegations by, among other things, directing Nass

to undergo a neuropsychological evaluation (Compl. Ex. 2; ECF No. 1-2);5 suspending her

4 The Complaint describes the three Assessment and Direction matters as follows:

The three [Assessment and Direction] matters involved (1) receipt of a mandated report

from a physician reporting the hospitalization of a patient Dr. Nass allegedly “diagnosed

over the phone”; (2) Dr. Nass’s communication to the [Board] that she had been forced to

provide misinformation to a pharmacist who had demanded to know the reason she

prescribed hydroxychloroquine to Patient 2; and (3) a mandated report from a certified

nurse midwife complaining about Dr. Nass having issued a prescription to a patient without

consulting the certified nurse midwife.

Compl. ¶ 51.

5 The Board issued the Order Directing Evaluation pursuant to a Maine statute that provides in part:

Upon its own motion or upon complaint, the board, in the interests of public health, safety

and welfare, shall treat as an emergency a complaint or allegation that an individual

licensed under this chapter is or may be unable to practice medicine with reasonable skill

and safety to patients by reason of mental illness, alcohol intemperance, excessive use of

drugs, narcotics or as a result of a mental or physical condition interfering with the

medical license (Compl. Ex. 3; ECF No. 1-3); subpoenaing patient records (Compl. Ex. 4;

ECF No. 1-4); requesting that Nass answer written questions about the complaints that the

Board received (Compl. Ex. 5; ECF No. 1-5); and issuing a complaint of its own against

Nass as to the three Assessment and Direction matters. Compl. ¶ 53.

On January 24, 2022, the Board issued a Notice of Hearing (Compl. Ex. 6; ECF No.

1-6), which acts as a charging instrument for a physician facing disciplinary action. The

Board issued an Amended Notice of Hearing on March 22, 2022 (Compl. Ex. 7; ECF No.

1-7) that superseded its precursor. The Amended Notice of Hearing documented many of

Nass’s public statements about COVID-19 vaccines, the pandemic, and the government’s

response to the pandemic. The Amended Notice of Hearing also listed nineteen potential

grounds for disciplinary action. After Nass moved to dismiss the proceedings for violating

her free speech rights, the Board withdrew several grounds for disciplinary action (Compl.

Ex. 8; ECF No. 1-8) and issued a Second Amended Notice of Hearing on September 26,

2022 (Compl. Ex. 9; ECF No. 1-9). The Second Amended Notice of Hearing retains

thirteen of the grounds for disciplinary action that the Board asserted initially.6 Each

physician to submit to a mental or physical examination by a physician or another person

designated by the board. . . .

For the purpose of this chapter, by practicing or by making and filing a biennial license to

practice medicine in this State, every physician licensed under this chapter who accepts the

privilege to practice medicine in this State is deemed to have given consent to a mental or

physical examination when directed in writing by the board and to have waived all

objections to the admissibility of the examiner’s testimony or examination reports on the

grounds that the testimony or reports constitute a privileged communication.

32 M.R.S. § 3286. There was no allegation against Nass related to substance abuse or mental illness.

6 The Second Amended Notice of Hearing also included some additional references to “Patients 1, 2, and/or

3.” See, e.g., Compl. Ex. 9 at 1. The Board reviewed the referenced patients’ medical records but did not

interview the patients before bringing the disciplinary charges. Each referenced patient later testified that

Nass provided excellent care.

potential ground for disciplinary action cites a subsection of 32 M.R.S. § 3282-A(2) as

support for the Board’s authority.7 Nass moved to vacate the Board’s evaluation and

suspension orders, which the Board summarily denied without deliberation or discussion

on October 11, 2022. The Complaint, which characterizes the disciplinary proceeding

underlying this case as including an “ongoing adjudicatory hearing,” criticizes the

Defendants’ conduct in several respects. Compl. ¶ 93. For one, the Board deviated from

its expert witness policy by hiring an out-of-state practitioner with a different specialty than

Nass to testify against her. The Board also made exception to the policy by paying that

7 Specifically, the Second Amended Notice of Hearing cites the following subsections of the statute:

2. Grounds for discipline. The board may suspend or revoke a license pursuant to Title

5, section 10004. The following are grounds for an action to refuse to issue, modify,

restrict, suspend, revoke or refuse to renew the license of an individual licensed under this

chapter:

A. The practice of fraud, deceit or misrepresentation in obtaining a license under this

chapter or in connection with service rendered within the scope of the license issued;

. . . .

E. Incompetence in the practice for which the licensee is licensed. A licensee is considered

incompetent in the practice if the licensee has:

(1) Engaged in conduct that evidences a lack of ability or fitness to discharge the

duty owed by the licensee to a client or patient or the general public; or

(2) Engaged in conduct that evidences a lack of knowledge or inability to apply

principles or skills to carry out the practice for which the licensee is licensed;

. . . .

H. A violation of this chapter or a rule adopted by the board;

. . . .

P. Noncompliance with an order or consent agreement of the board;

Q. Failure to produce upon request of the board any documents in the licensee’s possession

or under the licensee’s control concerning a pending complaint or proceeding or any matter

under investigation by the board, unless otherwise prohibited by state or federal law;

R. Failure to timely respond to a complaint notification sent by the board;

. . . .

32 M.R.S. § 3282-A(2)(A), (E), (H), (P), (Q), (R).

expert more than the established maximum rate for his services. For another, the Board

Chair, Defendant Gleaton, appeared to be “either sleeping or feigning sleeping, laughing,

grinning, making exaggerated looks of astonishment, or headshaking during cross

examinations conducted by Dr. Nass’s counsel.” Compl. ¶ 104. Dr. Gleaton also made an

out-of-turn comment while Nass’s counsel was examining the Board’s expert and did not

initially acknowledge the comment when the hearing officer mistakenly reprimanded Nass

for the disruption.

As of the filing of her Complaint, on August 16, 2023, Nass had been suspended

from practicing medicine “without a hearing conclusion” for over nineteen months.

Compl. ¶ 80. The Board eventually issued its decision and order on December 12, 2023.

Defs.’ Procedural Update (ECF No. 20-1). In its decision and order, the Board

unanimously found multiple violations of standards of practice and also concluded that

certain alleged violations did not occur. Defs.’ Procedural Update at 13–16. The Board

“renewed [Nass’s] pending renewal application,” but imposed a license suspension and a

period of probation. Defs.’ Procedural Update at 16–17; see also Dec. 14, 2023 Mot. for

Withdrawal and Modification of Decision and Order at 4 (ECF No. 20-2). On or about

December 28, 2023, Nass filed a petition for judicial review of the Board’s decision and

order, which petition arises under Maine Rule of Civil Procedure 80C and is pending in the

Maine Superior Court. Pet. for Review (ECF No. 20-3). The gravamen of Nass’s petition

is that the Board’s investigation and suspension of her license are the result of disqualifying

bias and a retaliatory mindset related to her public criticism of the government’s response

to the COVID-19 pandemic. In subparagraphs contained within her sole count for review

of agency action, Nass contends that the board proceedings violated her state and federal

due process rights as well as her rights under the First Amendment. Pet. for Review ¶¶ 66–

67.8

In this civil action, Nass seeks declaratory and injunctive relief, compensatory and

punitive damages, and attorney’s fees and costs. Nass’s overarching arguments are that

the Defendants’ conduct has chilled her free speech and that the disciplinary proceedings

constitute retaliation against her for expressing views that the Board disfavors. Nass

contends that the potential grounds for disciplinary action in the Second Amended Notice

of Hearing “are frivolous and serve as a mere pretext” to punish her for her speech. Compl.

¶ 81. According to Nass, her nineteen-month interim suspension, which the Board

maintained “despite the modest nature of the remaining grounds” for possible discipline,

evinces the Board’s retaliatory animus. Compl. ¶ 92. Nass further assigns retaliatory bias

to the Board’s decision to bring disciplinary charges against her without interviewing her

patients, Defendant Gleaton’s silence when Nass was accused of disrupting the disciplinary

hearing, the Board’s violations of its expert witness policy, and the Board’s request that

Nass answer questions that “were designed to elicit information to undermine [her] public

statements [and] provide leads for potential sources of other complaints against [her].”

Compl. ¶ 69.

The Complaint includes six counts. In Count 1, a § 1983 claim brought against the

Board only, Nass alleges that 32 M.R.S. § 3282-A, as construed by the Position Statement

8 Oral argument occurred before then-Chief Judge Jon D. Levy on January 17, 2024. Tr. of Hr’g (ECF No.

and as applied to her, violates the First Amendment to the United States Constitution. In

Count 2, a § 1983 claim brought against the Board only, Nass alleges that 32 M.R.S.

§ 3282-A, as construed by the Position Statement and as applied to her, is

unconstitutionally vague. In Count 3, another § 1983 claim, Nass alleges that the Board

and the Individual Defendants, acting in their official capacities, retaliated against her for

exercising her First Amendment rights. In Count 4, brought against the Board only, Nass

alleges that 32 M.R.S. § 3282‑A, as construed by the Position Statement and as applied to

her, violates free speech and due process guarantees under the Maine Constitution, Me.

Const. art. I, §§ 4, 6-A. In Count 5, brought against all the Board and the Individual

Defendants acting in their official capacities, Nass alleges a violation of the Maine Civil

Rights Act, 5 M.R.S. §§ 4681-85. And in Count 6, Nass seeks a recovery against the

Individual Defendants in their personal capacities.9

DISCUSSION

The Defendants move to dismiss under Rules 12(b)(1), for lack of subject-matter

jurisdiction,10 and 12(b)(6), for failure to state a claim. Fed. R. Civ. P. 12(b)(1), (6). The

primary thrust of their Motion is a request that the Court “apply Younger abstention,” but

9 Count 6 is stated under a “punitive damages” heading. Technically, punitive damages is a form of relief

and not a legal cause of action. South Port Marine, LLC v. Gulf Oil Ltd. P’ship, 234 F.3d 58, 64 (1st Cir.

2000). I construe Count 6 as a claim that the individual defendants are personally liable for deprivations of

Nass’s federal and state constitutional rights, as that is the obvious assertion she makes beneath the heading.

10 Rule 12(b)(1) “overspread[s] a variety of different types of challenges to subject-matter jurisdiction”

including “those grounded in considerations of . . . sovereign immunity.” Valentin v. Hosp. Bella Vista,

254 F.3d 358, 362–63 (1st Cir. 2001). The Defendants’ Motion to Dismiss is premised in part on the

argument that sovereign immunity bars Nass’s claims against the Board and the individual defendants in

their official capacities. See Mot. at 12–14.

the Defendants also contend that the dismissal of any surfeit claims is appropriate on the

merits based on the application of federal and state immunity doctrines. Mot. at 1–2.

A. YOUNGER ABSTENTION

The Defendants raise a threshold issue implicating the Court’s jurisdiction: whether

the Court should abstain from deciding this case under Younger v. Harris, 401 U.S. 37

(1971). The Younger doctrine enshrines “equitable principles of comity and federalism”

and imposes a prudential limitation on the exercise of federal court jurisdiction to avoid

undue intervention by federal judges into a limited collection of state judicial and

quasi-judicial proceedings. Ohio Bur. of Empl. Servs. v. Hodory, 431 U.S. 471, 479 (1977).

In such matters, it is generally deemed appropriate “to allow the State an opportunity to set

its own house in order” as to federal questions rather than having a federal court ride herd

over the state proceedings and the officer(s) who conduct them. Id. at 479–80 (internal

quotation marks omitted).

The kinds of matters subject to the Younger abstension doctrine include ongoing

state civil proceedings “akin” to prosecutions. Huffman v. Pursue, Ltd., 420 U.S. 592, 604

(1975). Such civil proceedings have been described as “civil enforcement proceedings”

and “civil proceedings involving certain orders that are uniquely in furtherance of the state

courts’ ability to perform their judicial functions.” Sprint Commc’ns, Inc. v. Jacobs, 571

U.S. 69, 73 (2013) (internal quotation marks omitted). The hallmarks of such proceedings

are that they are “initiated to sanction the federal plaintiff . . . for some wrongful act,” id.

at 79; “a state actor is routinely a party to the state proceeding and often initiates the action,”

id., and “[i]nvestigations are commonly involved, often culminating in the filing of a

formal complaint or charges,” id. at 79–80. See Sirva Relocation, LLC v. Richie, 794 F.3d

185, 193 (1st Cir. 2015) (outlining the “Younger taxonomy”).

For present purposes, state “disciplinary proceedings against state-licensed

professionals” ordinarily fall within the ambit of what is meant by civil enforcement

proceedings within the Younger taxonomy. Philip Morris Inc. v. Harshbarger, 946 F.

Supp. 1067, 1076 (D. Mass. 1996) (first citing Middlesex Cnty. Ethics Comm. v. Garden

State Bar Ass’n, 457 U.S. 423, 432 (1982) (lawyers); and then citing Bettencourt v. Bd. of

Registration in Medicine, 904 F.2d 772, 778 (1st Cir. 1990) (physicians)).11 However,

disciplinary proceedings that fall within the Younger taxonomy may fall out of it if they do

not satisfy three additional requirements, often labeled the “Middlesex factors.” Sirva

Relocation, 794 F.3d at 192, 196 (citing Middlesex). And even if these are all satisfied, it

is still possible that an exception might make the case a poor candidate for Younger

abstention. Id. at 193.

Nass only disputes the third Middlesex factor, which requires that the state

proceedings afford a meaningful opportunity to raise defenses based on the federal rights

raised in the district court. Id. If all the Middlesex factors check out, it is still possible that

evidence of bias by the state tribunal is so great that abstention would be contrary to the

district court’s “virtually unflagging obligation” to exercise jurisdiction over controversies

involving federal questions. Id. at 191 (quoting Colorado River Conserv. Dist. v. United

11 Nass does not dispute that the state proceedings here fall within the Younger taxonomy. See Resp. to

States, 424 U.S. 800, 817 (1976)); see Brooks v. N.H. Sup. Ct., 80 F.3d 633, 639–40 (1st

Cir. 1996) (discussing bias exception to Younger abstention).

Nass contends that she cannot raise her federal constitutional claims in appealing

the Board’s disciplinary sanction against her. Nass also attempts to mount a case for the

bias exception to Younger abstention. Because I am satisfied that all of the other

requirements for abstention are met here, the remainder of the Younger discussion focuses

on the two challenges articulated by Nass.

1. The Only Contested Middlesex Factor Is Satisfied

Nass contends that “[t]he Board proceedings do not provide an adequate

opportunity . . . to raise her constitutional challenges” because they “adjudicate[] different

issues” and “involve[] different parties, different relief, and different factfinders”12 and also

because her “opportunity for meaningful consideration of the facts” in that forum “is

sharply limited by the Maine [Administrative Procedure Act].” Resp. to Mot. at 4–5.

“Except in the most extraordinary cases, a federal court must presume that state

courts . . . are fully competent to adjudicate federal constitutional and statutory claims

properly presented by the parties.” Casa Marie, Inc. v. Super. Ct. of P.R., 988 F.2d 252,

262 (1st Cir. 1993) (footnote omitted); accord Middlesex, 457 U.S. at 431 (“Minimal

respect for the state processes, of course, precludes any presumption that the state courts

will not safeguard federal constitutional rights.”). Thus, “the third Middlesex factor is

12 Nass “is seeking relief for the Board’s pre-hearing investigatory conduct intended to retaliate against her,

and to bring a pre-enforcement challenge to the position statement announced by the Board.” Resp. to Mot.

at 7. She contends that the Board lacks jurisdiction “to award [her] damages, injunctive relief, or a

declaration that the position statement is unlawful” and also that “the best she can achieve” on appeal from

the Board’s decision “is vacatur of any final disciplinary action.” Id. at 4–5.

generally deemed satisfied as long as no state procedural rule bars the assertion of federal

defense and the state affords a fair opportunity to raise that defense” to the state

adjudicator’s decision. Sirva Relocation, 794 F.3d at 196; see also Middlesex, 457 U.S. at

432 (“Where vital state interests are involved, a federal court should abstain ‘unless state

law clearly bars the interposition of the constitutional claims.’” (quoting Moore v. Sims,

442 U.S. 415, 426 (1979))). “The burden is on the federal plaintiff to show that state

procedural law bars presentation of [her] claims.” 17B Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 4252 (3d ed.) (first citing Penzoil Co. v. Texaco,

Inc., 481 U.S. 1, 15–16 (1987); and then citing Moore, 442 U.S. at 432).13

Here, the relevant state proceedings are the Board’s disciplinary proceedings against

Nass and any appeal therefrom. See Maymó-Meléndez v. Álvarez-Ramírez, 364 F.3d 27,

35 (1st Cir. 2004) (observing that administrative proceedings are “ongoing” for Younger

abstention purposes until state judicial review is completed (citing New Orleans Pub. Serv.,

Inc. v. Council of the City of New Orleans, 491 U.S. 350, 374 (1989) (Rehnquist, C.J.,

concurring))). The disciplinary proceedings encompass the Board’s investigation into

potentially sanctionable conduct, as identified by either a third-party complaint or the

Board itself. See 32 M.R.S. § 3282-A(1) (defining the scope of Board disciplinary

13 The question is not whether a claim for specific relief will be afforded in the state proceedings, such as

an award of money damages, but rather whether the state proceedings provide a meaningful opportunity to

assert a “claim” that the proceedings work a deprivation of a federal right. The Supreme Court has

considered the issue in terms of “the opportunity to level constitutional challenges,” Ohio C. R. Comm’n v.

Dayton Christian Schs., Inc., 477 U.S. 619, 629 (1986), and the First Circuit has observed that a litigant’s

inability to secure a damages award against the state officials responsible for the civil enforcement

proceedings from the state court review of a state agency adjudication is not an impediment to Younger

abstention. Rossi v. Gemma, 489 F.3d 26, 37 (1st Cir. 2007); see also Sirva Relocation, 794 F.3d at 196

(“The last Middlesex factor deals with the adequacy of the opportunity to raise federal defenses in the state

proceedings). Any subsequent appeal includes both Nass’s merits challenge to the Board’s

final disciplinary decision, M.R. Civ. P. 80C(a), and any claims “joined . . . alleging an

independent basis for relief from governmental action,” M.R. Civ. P. 80C(i), such as the

failure to respect Nass’s federal speech rights.

In Maine, a state court considering a petition from final agency action joined with

independent claims for relief acts in two distinct capacities: as an appellate court when

reviewing the governmental action and as a trial court when weighing the independent

claims. Baker’s Table, Inc. v. City of Portland, 743 A.2d 237, 242 (Me. 2000) (explaining

state procedure associated with the analogous Maine Rule of Civi Procedure 80B).14 As

to the review of the underlying agency action, the state court may “[r]everse or modify the

decision” upon concluding that “the administrative findings, inferences, conclusions or

decisions . . . violat[e] constitutional or statutory provisions.” 5 M.R.S. § 11007(4)(C)(1).

As to the independent claims, the reviewing court does not act from a preexisting

administrative record but instead from a separate record developed through discovery

“allowed as in other civil actions.” M.R. Civ. P. 80C(j). Cf. Baker’s Table, 743 A.2d at

240–41 (acknowledging that “[t]he presentation of facts to the court” on independent

claims joined with a Rule 80B petition “will ordinarily be controlled by Rule 16” of the

Maine Rules of Civil Procedure).

14 Although Baker’s Table considered a petition brought under Rule 80B, which governs review of

governmental action, that rule’s subsection on “Joinder with Independent Action” is substantially similar

to its identically titled analogue in Rule 80C. Compare M.R. Civ. P. 80B(i), with M.R. Civ. P. 80C(i). See

M.R. Civ. P. 80C 1983 advisory committee’s note to new rule 80C (“Rule 80C(i) is similar to the

contemporaneous amendment adding Rule 80B(i).”).

The Complaint plainly establishes that Nass already raised an argument before the

Board implicating her First Amendment rights when, after the First Amended Notice of

Hearing issued, she moved to dismiss the proceedings for attempting to discipline her for

allegedly protected speech. See Compl. ¶ 78. That fact supports the inference that Nass

had an opportunity to raise federal challenges to the Board proceedings, including to the

Board’s “pre-hearing” and “pre-enforcement” conduct. Resp. to Mot. at 7. In any event,

Nass does not identify any limitation in Rule 80C that prevents her from raising her claim

that the Board proceedings were in derogation of her federal rights. Absent that showing,

and because “it is sufficient under Middlesex . . . that constitutional claims may be raised

in state-court judicial review of the administrative proceeding,” Nass’s contention that the

state proceedings are inadequate must fail. Ohio C.R. Comm’n., 477 U.S. at 629 (citation

omitted); accord Moore, 442 U.S. at 430 (“[T]he only pertinent inquiry is whether the state

proceedings afford an adequate opportunity to raise the constitutional claims . . . .”). The

same benchmark for adequacy—whether a party has an opportunity to raise claims in the

state proceedings—also renders irrelevant Nass’s argument that the state proceedings are

lacking because they involve different parties, remedies,15 and factfinders than this federal

case.

15 For reasons outlined above, it is not essential to Younger abstention that the state court review process

afford independent claims for damage remedies against the state officers who conducted the underlying

disciplinary proceedings. Under Maine Supreme Judicial Court precedent, the damages and injunctive

relief that Nass seeks are available through the ongoing state proceedings, albeit not necessarily by joining

personal liability claims against the state officers who directed the Board’s actions, as opposed to the Board

itself. See Fleming v. Comm’r Dep’t of Corr., 795 A.2d 692, 695 (Me. 2002) (holding that a “request for

injunctive relief is not inconsistent with 5 M.R.S.A. § 11007(4)(B), which gives the court, in an action

pursuant to Rule 80C . . . the power to ‘direct the agency to . . . take such action as the court deems

necessary.’” (quoting 5 M.R.S. § 11007(4)(B))); id. (“Rule 80C anticipates that a plaintiff (or petitioner)

may add an independent claim for damages, and the rule provides a procedure for handling that independent

In sum, Nass has not shown that the ongoing state proceedings fail to provide her

an adequate opportunity to raise her federal claims. Accordingly, the only contested

Middlesex factor is satisfied, and I must abstain from exercising jurisdiction under Younger

unless, as Nass contends, a doctrinal exception applies.

2. The Bias Exception to Younger Abstention is Inapplicable

Nass argues that I should not abstain from exercising jurisdiction under Younger

because she has “plausibly allege[d] that the Board suffers from institutional bias against

[her].” Resp. to Mot. at 7. In support, Nass cites facts asserted about the Board’s conduct

preceding the disciplinary hearing, namely: (1) ordering her to undergo a

neuropsychological evaluation without having received an allegation about her mental

state, physical condition, or substance misuse to justify that directive; (2) issuing

unnecessary subpoenas and inquiries into the basis for her public statements; and (3)

implementing an immediate order of suspension. Nass also points to allegations that the

Board violated its own policy when hiring an expert to testify against her and that the

Board’s Chair, Defendant Gleaton, serves as a director of FSMB, the private organization

whose view the Board endorsed in the Position Statement, as examples of bias in the state

proceedings that support exercising jurisdiction here.

For Younger purposes, “[t]he bias standard encompasses ‘cases in which extreme

bias completely renders a state adjudicator incompetent and inflicts irreparable harm upon

from final agency action joined with an independent claim seeking declaratory relief); Miller v. Maine

Dep’t of Corr., No. Civ.A. AP-03-016, 2004 WL 3196888, *3 (Me. Super. Ct. Nov. 17, 2004) (reviewing

a Rule 80C petition joined with an independent declaratory judgment claim); see also 5 M.R.S.

§ 11007(4)(C)(1) (permitting a court reviewing a final agency action to reverse decisions made “in violation

the petitioner.’” Christian Action Network v. Maine, 679 F. Supp. 2d 140, 148 (D. Me.

2010) (quoting Esso Standard Oil Co. v. López-Freytes, 522 F.3d 136, 143 (1st Cir. 2008)).

Where the state adjudicator is infected with disqualifying bias, the availability of judicial

review in state court is insufficient to support Younger abstention. Esso Standard Oil v.

Cotto, 389 F.3d 212, 221 (1st Cir. 2004). “Without a showing to the contrary, state

administrators ‘are assumed to be [people] of conscience and intellectual discipline,

capable of judging a particular controversy fairly on the basis of its own circumstances.’”

Withrow v. Larkin, 421 U.S. 35, 55 (1975) (quoting United States v. Morgan, 313 U.S. 409,

421 (1941)). Their presumed “impartiality cannot be trumped by free-floating invective,

unanchored to specific facts.” Brooks, 80 F.3d at 640. Instead, “the baseline showing of

bias necessary to trigger Younger’s escape mechanism requires the plaintiff to offer some

evidence that abstention will jeopardize [her] due process right to an impartial

adjudication.” Id. Further to the point, claims of general institutional bias alone do not

trigger the exception; they require “a further showing, such as a potential conflict of interest

or a pecuniary stake in the outcome” of the state proceedings. Id. (citations omitted).

Most of the facts Nass asserts to anchor her claim of general institutional bias do

not come close to demonstrating the extreme bias necessary to overcome the presumption

of impartiality that the Defendants enjoy. Cf. Brooks, 80 F.3d at 640 (“[A]n entire group

of adjudicators cannot be disqualified wholesale solely on the basis of an alleged

institutional bias in favor of a rule or policy promulgated by that group.”). Conduct

arguably inconsistent with the Board’s statutory authority and policies, like directing a

neuropsychological evaluation and paying a premium to hire an expert from away,

broaches bias without rebutting the Board’s presumed impartiality. In other words, even

if such conduct may suffice to state an independent claim, it does not warrant a departure

from the equitable principles of comity and federalism that underlie Younger abstention.

As for Nass’s contention that Defendant Gleaton’s dual roles as Board chair and as

the FSMB director creates a conflict of interest that undermines Gleaton and the Board’s

presumed impartiality, it also misses the mark. Nass pleads that Gleaton’s roles violate

Maine’s conflict-of-interest policy for appointees to professional licensing boards, see

Compl. ¶ 102; Compl. Ex. 10 (ECF No. 1-10),16 and that she twice sought to disqualify

Gleaton on that basis,17 Compl. ¶ 103. However, Maine’s conflict-of-interest policy bars

members of licensing boards, like Gleaton, from holding leadership positions in

“[p]rofessional or trade associations [that] serve the best interests of the profession,”

Compl. ¶ 102, not associations established to advance a public health agenda.

The Complaint alleges that the FSMB is a “private advocacy organization” without

pleading that the group promotes the interests of the medical profession exclusively or even

primarily. Compl. ¶ 100. Nass asserts only that the FSMB “advocates for federal and state

policies which, in the FSMB’s opinion, positively impact the health and safety of patients

and the medical regulatory system,” Compl. ¶ 26, and also that the organization has an

agenda that is both “private” and “political,” Compl. ¶¶ 25, 103. Contrary to Nass’s

contentions, those allegations do not establish that Gleaton’s dual roles served competing

16 The policy provided on the record dates to 2017. The parties do not dispute its continued application

during the pendency of Board proceedings against Nass.

17 This assertion is a prerequisite to invoking the bias exception to Younger. Brooks, 80 F.3d at 640 (“[T]he

bias exception to the Younger abstention doctrine is inapposite if an ostensibly aggrieved party fails to

interests and created a conflict that would justify finding the extreme bias necessary to

sidestep Younger. Instead, I take the FSMB at face value: as an association of state

licensing entities organized to serve the public interest by regulating medical professionals

within their respective jurisdictions, not as a self-interested group of medical professionals

to which the public interest is, at best, a secondary concern. With that, Nass’s attempt to

overcome Younger abstention based on extreme bias falls flat.

3. Younger Summary

Because the ongoing state proceedings provide Nass an adequate opportunity to

raise her federal claims, which satisfies the only contested Middlesex factor, and absent

evidence of bias implicating a due process concern, I am persuaded that Younger abstention

is appropriate and abstain from exercising jurisdiction over Nass’s effort to quell the state

proceedings.

A court that abstains from exercising jurisdiction under Younger ordinarily

dismisses the federal action. Bettencourt, 904 F.2d at 781. However, to the extent that the

federal action includes a damages claim, a court “ordinarily may only stay the action, rather

than dismiss the action in its entirety.” Rossi v. Gemma, 489 F.3d 26, 38 (1st Cir. 2007).

Here, because Nass asserts claims for damages against the Individual Defendants, a partial

stay rather than outright dismissal is apt. In effect, Nass’s core effort to upend the state

enforcement proceedings through an award of injunctive or declaratory relief against the

Board or the Individual Defendants in their official capacities is dismissed without

prejudice based on Younger,18 but her claims for damages against the Individual

Defendants in their personal capacities will be stayed for later consideration upon the

conclusion of the state proceedings.

Nevertheless, the Individual Defendants observe that, to the extent there are claims

that ordinarily would be subject to a stay, a district court may separately evaluate whether

those claims succumb to another argument for dismissal. Resp. to Mot. at 1–2; see also

Bettencourt, 904 F.2d at 781. If so, there is no point in ordering an indefinite stay and the

court will act appropriately by reaching the alternative arguments for dismissal. Because

the Individual Defendants raise other grounds for dismissal of the damages claims against

them—to wit, their entitlement to qualified and absolute immunity—I proceed to consider

those affirmative defenses.

B. INDIVIDUAL DEFENDANTS’ IMMUNITY

What remains in the wake of Younger abstention and sovereign immunity are Nass’s

claims against the Individual Defendants in their individual capacities seeking damages.

The Individual Defendants argue qualified immunity and absolute immunity insulate them

from those claims.

18 Nass’s claims against the Board and her official capacity claims against the Individual Defendants also

run headlong into the Eleventh Amendment to the United States Constitution. “‘Long interpreted as an

affirmation of state sovereign immunity, . . . the amendment . . . bars a citizen from bringing a federal court

action against his or her own State,’ including instrumentalities of the state, such as state agencies.” Town

of Barnstable v. O’Connor, 786 F.3d 130, 138 (1st Cir. 2015) (alterations and citation omitted) (quoting

Maysonet-Robles v. Cabrero, 323 F.3d 43, 48 (1st Cir. 2003)). “States and their agencies are entitled to

sovereign immunity ‘regardless of the relief sought.’” Poirier v. Mass. Dep’t of Corr., 558 F.3d 92, 97 (1st

Cir. 2009) (quoting Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985)). However, the Younger abstention

doctrine takes precedence in my discussion because the case also presented official capacity claims for

prospective equitable and/or injunctive relief against the Individual Defendants that would clear the bar

presented by the Eleventh Amendment. See Chaulk Servs., Inc. v. Mass. Comm’n Against Discrimination,

1. Qualified Immunity

“When government officials are sued in their individual capacities for money

damages, the doctrine of qualified immunity shields them from pecuniary liability unless

their conduct violated ‘clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Lawless v. Town of Freetown, 63 F.4th 61, 67

(1st Cir. 2023) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). Qualified

immunity “protects all state actors except ‘the plainly incompetent and those who

knowingly violate the law.’” Haley v. City of Bos., 657 F.3d 39, 47 (1st Cir. 2011)

(alteration omitted) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Despite its broad

sweep, the doctrine “does not ‘shield public officials who, from an objective standpoint,

should have known that their conduct was unlawful.’” Id. (quoting Pagán v. Calderón,

448 F.3d 16, 31 (1st Cir. 2006)). The Supreme Court has “repeatedly stressed the

importance of resolving immunity questions at the earliest possible stage in litigation.”

Pearson, 555 U.S. at 232 (2009) (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per

curiam)); cf. Costa-Urena v. Segarra, 590 F.3d 18, 28–29 (1st Cir. 2009) (“The qualified

immunity doctrine provides defendant public officials an immunity from suit and not a mere

defense to liability.” (emphasis added) (quoting Maldonado v. Fontanes, 568 F.3d 263,

268 (1st Cir. 2009))).

The qualified immunity inquiry follows a two-part test: (1) whether the facts alleged

by the plaintiff make out a violation of a constitutional or other federal right, and

(2) whether the right was clearly established at the time of the defendant’s alleged

misconduct. Pearson, 555 U.S. at 232. Courts “may address either prong of the qualified

immunity analysis first,” and “[a]n official may be entitled to qualified immunity ‘based

on either prong.’” Ablordeppey v. Walsh, 85 F.4th 27, 32–33 (1st Cir. 2023) (quoting Est.

of Rahim by Rahim v. Doe, 51 F.th 402, 410 (1st Cir. 2022)).

Nass contends that the Individual Defendants violated her clearly established rights

by initiating and conducting disciplinary proceedings against her for “engaging in public

speech about and reporting on the COVID-19 vaccine, the COVID-19 pandemic and its

treatment, the governmental response to the pandemic, and related topics,” Compl. ¶ 127,

and for disseminating COVID-19 misinformation.

For purposes of the Rule 12(b)(6) portion of the pending Motion, without prejudice

to the Individual Defendants’ ability to re-raise the question, I decline to summarily dismiss

the case based on qualified immunity. It has long been clearly established that the

government cannot coerce speech through punitive threats or measures, except in narrowly

limited circumstances. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 68 (1963); Chaplinsky

v. New Hampshire, 315 U.S. 568, 570 (1942); Berge v. Sch. Comm. of Gloucester, No. 22-

1954, 2024 WL 3408206 (1st Cir. July 15, 2024). Ultimately, that general principle may

or may not be dispositive of the Individual Defendants’ bid for qualified immunity, but it

is suffient for me to choose a stay over dismissal in the context of a case that is otherwise

subject to abstention.

2. Quasi-Judicial and/or Prosecutorial, Absolute Immunity

“Absolute immunity applies to a narrow swath of public officials, including judges

performing judicial acts within their jurisdiction, prosecutors performing acts intimately

associated with the judicial phase of the criminal process, and agency officials with

functions similar to judges and/or prosecutors.” Goldstein v. Galvin, 719 F.3d 16, 24 (1st

Cir. 2013) (internal quotation marks omitted). “The protection afforded by an absolute

immunity endures even if the official acted maliciously and corruptly in exercising his

judicial or prosecutorial functions.” Id. (internal quotation marks omitted). “Although this

concept of absolute immunity allows some abuses of official power to go unredressed, it is

necessary for the effective administration of government that government workers be able

to perform their jobs without fear of liability.” Ricci v. Key Bancshares of Me., Inc., 768

F.2d 456, 462 (1st Cir. 1985). “The proponent of a claim to absolute immunity bears the

burden of establishing the justification for such immunity.” Antoine v. Byers & Anderson,

Inc., 508 U.S. 429, 432 (1993).

Insofar as the Individual Defendants rely on quasi-judicial immunity, I initially pass

over the contention given that Nass’s Complaint clearly implicates something more than

the exercise of the judicial role; it also implicates the legitimacy of the institution of the

enforcement proceedings and certain pre-hearing sanctions against her. Thus, the proper

place to begin is with this question: Whether the institution of the proceedings and the

imposition of a prehearing suspension and mental evaluation were within the parameters

of absolute prosecutorial immunity? See Goldstein, 719 F.3d at 26.

“The baseline rule is that a state official who performs prosecutorial functions,

including the initiation of administrative proceedings that may result in legal sanctions, is

absolutely immune from damages actions.” Id. Ancillary investigative work comes within

this broad grant of immunity. Id. at 26–27; see also Imbler v. Pachtman, 424 U.S. 409,

431 n.33 (1976) (“[T]he duties of the prosecutor in his role as advocate for the State involve

actions preliminary to the initiation of a prosecution and actions apart from the

courtroom.”). And “an accusation of a conflict of interest does not trump a claim of

absolute immunity.” Goldstein, 719 F.3d at 28 (quoting Guttman v. Khalsa, 446 F.3d 1027,

1033–34 (10th Cir. 2006)).

Goldstein and the cases it relies on demonstrate that, ordinarily, the Individual

Defendants would be absolutely immune from Nass’s damages claims to the extent the

claims are based on the institution of the enforcement proceeding. However, it remains to

be seen whether absolute immunity recedes as to other acts the Individual Defendants

performed, like imposing the extended “temporary” suspension and requiring Nass to

undergo a mental health examination, or perhaps their conduct of an insufficiently

adversarial adjudicatory process. For instance, absolute immunity does not shield a

prosecutor who performs the role of a “complaining witness in support of a warrant

application.” Van de Kamp v. Goldstein, 555 U.S. 335, 343 (2009) (citing Kalina v.

Fletcher, 522 U.S. 118, 132 (1997) (Scalia, J., concurring)). In that context, at least, a

prosecutor enjoys only qualified immunity, not absolute immunity. Buckley v.

Fitzsimmons, 509 U.S. 259, 274 (1993).

Without presuming to resolve the matter at this juncture, as I did with the preceding

discussion of qualified immunity, I find it sufficient for purposes of deciding whether to

dismiss or stay the damages claims that imposing a mental health examination may be

adequately protected by the doctrine of qualified rather than absolute immunity. Given the

allegedly retaliatory nature of that act, the absolute versus qualified immunity contention

deserves more thorough consideration.

Returning to the adjudicative function, in principle, “the safeguards built into the

judicial process tend to reduce the need for private damages actions as a means of

controlling unconstitutional conduct.” Butz v. Economou, 438 U.S. 478, 512 (1978). “The

insulation of the judge from political influence, the importance of precedent in resolving

controversies, the adversary nature of the process, and the correctability of error on appeal

are just a few of the many checks on malicious action by judges.” Id. “Because these

features of the judicial process tend to enhance the reliability of information and the

impartiality of the decisionmaking process, there is a less pressing need for individual suits

to correct constitutional error.” Id.

Such safeguards justify the application of absolute over qualified immunity, but do

they obtain here? Absolute judicial immunity will extend to officials engaged in

administrative agency enforcement proceedings if those proceedings share “enough of the

characteristics of the judicial process.” Id. at 513. Based on a preliminary review of the

allegations and the sparse record provided by the Individual Defendants, who bear the

burden of satisfying the Butz requirements, this may be a case in which it is appropriate to

deny absolute immunity, but only if the Board’s administration of the enforcement

proceedings did not afford meaningful political safeguards and/or adversarial procedures.

These considerations can await the resolution of the state proceedings. Indeed,

commenting on them now would effectively commandeer the state court’s review of Nass’s

due process concerns and, in turn, undermine the comity that Younger abstention is meant

to preserve.

CONCLUSION

For the reasons outlined above, Defendants’ Motion to Dismiss is GRANTED IN

PART and DENIED IN PART. (ECF No. 14.) Specifically, Plaintiff’s claims against

the Board of Licensure in Medicine and the Individual Defendants acting in their official

capacities are DISMISSED WITHOUT PREJUDICE. This disposition affects Counts

1, 2, and 4, which are subject to the dismissal order. It also affects Counts 3, 5, and 6, but

is not wholly dispositive of those Counts to the extent they can be read to assert or support

personal capacity claims against the Individual Defendants for compensatory and punitive

damages. As for the personal capacity claims, further proceedings are STAYED pending

resolution of the state proceedings.

SO ORDERED.

Dated this 24th day of July, 2024.

/s/ Lance E. Walker

Chief U.S. District Judge