The opinion
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STATE OF MAINE BUSINESS AND CONSUMER COURT
CUMBERLAND, ss Location: Portland
Docket No.: BCD-AP-11-02 J
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MALLINCKRODT US, LLC and )
UNITED STATES SURGICAL CORP., )
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Petitioners, )
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v. ) ORDER
) (Motion to Dismiss)
MAINE DEPARTMENT OF )
ENVIRONMENTAL PROTECTION, )
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Respondent )
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Respondent Maine Department of Environmental Protection moves to dismiss, 1 pursuant·
to M.R. Civ. P. 12(b)(6), the independent claim asserted by Petitioners Mallinckrodt and United
States Surgical Corp. (collectively, "Mallinckrodt") for violations of 42 U.S.C.S. § 1983
(Le;J1isNexis 2002). The Department asserts that Mallinckrodt's section 1983 action is precluded
because M.R. Civ. P. 80C provides Mallinckrodt with an exclusive and adequate remedy for all
of its claims.
Mallinckrodt filed its petition for review of agency action on September 17, 2010,
asserting various errors of both law and fact in the Maine Board of Environmental Protection's
August 19, 2010, order (the "Order"). See 5 M.R.S. § l 1007(4)(C) (2012) (stating grounds upon
which a court may reverse or modify the decision of an administrative agency); M.R. Civ. P.
SOC. Among the challenges to the Order asserted by Mallinckrodt as part of the administrative
1
Respondent initially filed this motion on October 14, 2010, but the Court stayed action on the motion pending a
decision on Mallinckrodl's appeal of the Maine Board of Environmental Protection's August 19, 2010, order. The
Court affirmed the Board's order in full on October 31, 2012. The Court heard oral argument on the motion on
December 20, 2012.
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appeal were constitutional due process violations, claims of bias, and challenges to the exclusion
of evideuce of bias at the proceeding. See 5 M.R.S. § 11007(4)(C)(l), (3), (4). Mallinckrodt
also asserted, in its section 1983 challenge to the Order, a due process violation based on
structural bias. (Petition~~ 202-18.) Both the Rule 80C claims and the section 1983 claim seek
the same relief. (See Petition at 35-36.)
A motion to dismiss pursuant to M.R. Civ. P. 12(b)(6) "tests the legal sufficiency of the
complaint and, on such a challenge, 'the material allegations of the complaint must be taken as
admitted."' Shaw v. S. Aroostook Comm. Sch. Dist., 683 A.2d 502, 503 (Me. 1996) (quoting
McAfee v. Cole, 637 A.2d 463,465 (Me. 1994)). When reviewing a motion to dismiss, the court
examines "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
pursuant to some legal theory." Shaw, 683 A.2d at 503.
The Department argues that M.R. Civ. P. SOC provides Mallinckrodt with an adequate
remedy for its claim of bias and that remedy is exclusive. "[W]hen a legislative body has made
provision, by the terms of a statute or an ordinance, for a direct means by which the decision of
an administrative body can be reviewed in a manner to afford adequate remedy, such direct
avenue is intended to be exclusive." Fisher v. Dame, 433 A.2d 366, 372 (Me. 1981); accord
Gagne v. Lewiston Crushed Stone Co., 367 A.2 613, 618 (Me. 1976). Thus, when an "agency's
decision is reviewable pursuant to ... M.R. Civ. P. 80C, that prncess prnvides the 'exclusive
process for judicial review unless it is inadequate"' and will cause irreparable injury. Antler's
Inn & Rest., LLC v. Dep't of Pub. Safety, 2012 ME 143, ~ 14, -- A.3d --- (quoting Gorham v.
Androscoggin Cnty., 2011 ME 63, ~ 22, 21 A.3d 115); Fisher, 433 A.2d at 372, 374. The
exclusivity principle applies to independent claims for relief brought with administrative appeals,
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such as a declaratory judgment action or a section 1983 action. See Antler's Inn, 2012 ME 143,
~~ 14-15, -- A.3d ---; Sold, Inc. v. Town of Gorham, 2005 ME 24, ~ 15,868 A.2d 172.
"Title 42 U.S .C.S. § 1983 provides a mechanism for a party to obtain relief for the acts of
government officials who, while acting under color of state law, ... cause the deprivation of a
federal right." 2 Antler's Inn, 2012 ME 143, ~ 14, -- A.3d --- (quotation marks omitted). In its
section 1983 action, Mallinckrodt asserts the proceeding was tainted with structural bias
resulting from conflicting roles of assistant attorney generals who prosecuted the case, but had
advised the Board in the past, and the Board's reliance on technical staff of the Department.
Mallinckrodt alleges these deficiencies resulted in a biased proceeding in violation of its right to
due process. Mallinckrodt argues that because it was prevented from presenting evidence of bias
during the administrative hearing and during the administrative appeal, the substance of its
section 1983 claim has not been addressed in any forum.
First, the Court notes that a claim alleging the exclusion of evidence is not a cognizable
section 1983 claim when an SOC process is available. See Antler's Inn, 2012 ME 143, ~ 14, -
A.3d ---. Further, Mallinckrodt's claims of bias and due process violations fall squarely within
the scope of 5 M.R.S. § 11007(C)(4). See id. ~ 15. Third, the Court in fact addressed
Mallinckrodt's arguments regarding the exclusion of evidence and constitutional violations in its
Decision and Order dated October 31, 2012.3 See Adelman v. Town of Baldwin, 2000 ME 91, ~
2
Because tbe Court resolves the motion on other grounds, the Court does not address the Department's argument
that Mallinckrodt has failed lo appropriately assert any claim against a "person," i.e., an individual official, as
opposed to the entire Department. See 42 U.S.C.S. § 1983 (providing a cause of action against a "person").
3
As explained in the October 31, 2012, Decision and Order, the Board recognized that "[i]n its review of the
Commissioner's Order, the Board must determine whether 'hazardous substances are or were handled or otherwise
came to be located' at the Sile that 'may create a danger to the public health, to the safely of any person or to the
environment."' (A.R. 344 nl 14 (quoting 38 M.R.S. § 1365(1) (2012).). Because the Board undertook an
independent review of both the conditions at the site, and the appropriate remedy. whether the Commissioner's
decision was influenced by politicnl considerations was not pertinent to the Board's determination. In the SOC
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7, 750 A.2d 577 (explaining allegations of bias asserted in an independent claim for relief are
duplicative when those allegations are addressed in an administrative appeal). Finally,
Mallinckrodt seeks no relief in its section 1983 claim separate from the relief it sought in its
administrative appeal. See Kane v. Comm'r of the Dep't of Health & Human Servs., 2008 ME
185, ~ 32,960 A.2d 1196.
In sum, because the administrative process provides Mallinckrodt with an adequate and
thus exclusive remedy, because the Court addressed Mallinckrodt's challenges, and because
Mallinckrodt seeks no unique relief in its independent claim, the Court concludes that
Mallinckrodt's section 1983 claim must be dismissed. Accordingly, and based on the foregoing
analysis, the Court GRANTS the Department's motion to dismiss Mallinckrodt's section 1983
claim.
Pursuant to M.R. Civ, P. 79(a), the Clerk shall incorporate this Decision and Order into
the docket by reference.
Date: 1/.;t/; 3
E11turcirl on tho Dockal: lJ.8·/5..
Coples sent via M11II _ EloclrM ir,al ly Jtt:"
proceeding, Mallinckrodt challenged the Board's exclusion of the evidence of political bias, which challenge the
Court rejected. The issue was thus part of the Rule 80C action.
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