Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

UNITED STATES OF )

AMERICA, )

)

Plaintiff )

)

v. ) No. 1:25-cv-00173-SDN

)

MAINE DEPARTMENT )

OF EDUCATION, )

)

Defendant )

ORDER ON DEFENDANT’S MOTION TO AMEND

The Maine Department of Education (MDOE), Defendant in this Title IX

discrimination case, moves for leave to amend its answer to add the affirmative

defense of selective enforcement.1 See Motion (ECF No. 26). Under the permissive

standard established by Fed. R. Civ. P. 15(a)(2), I grant the MDOE leave to amend

and assert a selective enforcement defense.

I. Background

The Government filed this lawsuit in April 2025 following investigations by

the Department of Education and the Department of Health and Human Services

into MDOE’s Title IX compliance. Motion at 4. The agencies began investigating

shortly after a February 21, 2025, National Governors Association meeting during

which President Trump challenged Governor Mills over Maine’s Title IX policies. Id.

1 Because the MDOE cites no authority supporting the viability of a vindictive prosecution defense in

a civil case, I deny leave to amend as to that defense. See Motion; MDOE Letter Brief (ECF No. 27)

at 2 (“Maine DOE is not presently aware of a case in which a court recognized vindictive prosecution

as a defense to a civil enforcement action.”).

The lawsuit alleges that the MDOE is violating Title IX of the Education

Amendments of 1972 and its regulations by implementing policies that “discriminate

on the basis of sex and harm female student athletes under [the MDOE’s] educational

charge.” Complaint (ECF No. 1) ¶¶ 1-2. In May 2025, the MDOE filed its answer

asserting several affirmative defenses including that “[t]he United States’ claims are

barred because it is acting ultra vires,” and that “[t]he United States’ claims, and/or

the relief the United States seeks, are barred by the Equal Protection and Due

Process Clauses of the United States Constitution.” Answer (ECF No. 12) at 17. In

mid-June 2025, I issued an amended scheduling order setting September 3, 2025, as

the deadline for amending pleadings. ECF No. 18.

On August 20, 2025, the MDOE filed this motion to amend. See Motion. It

seeks leave to add an eighth affirmative defense: that “[t]he United States’ claims are

barred because the United States is selectively enforcing Title IX against the Maine

Department of Education and/or is maliciously and vindictively prosecuting this

action.” Id. at 1. The MDOE notes that twenty-two other states do not prohibit

transgender girls from participating in sports based on gender identity. See Reply

at 2 (citing a combination of states with no policy on transgender participation and

some with explicit protections). Yet only two of these states have faced lawsuits from

the federal government. Id. The MDOE also cites the timing of federal

investigations, the Social Security Administration former acting commissioner’s

contract terminations accompanied by his statement, “no money will go from the

public trust to a petulant child,” and a demand by President Trump for a full apology

from Governor Mills, along with a promise never to challenge the federal government

in such a manner again after the February 21, 2025, exchange. Motion at 3-5.

II. Discussion

Under Federal Rule of Civil Procedure 15, after the period for amending a

pleading “as a Matter of Course” has passed, a moving party must seek leave of court

to amend, which should be “freely given when justice so requires.” Id. The First

Circuit has described this standard as reflecting a liberal approach to amendments.

See, e.g., Amyndas Pharmaceuticals, S.A. v. Zealand Pharma A/S, 48 F.4th 18, 36

(1st Cir. 2022) (“The Civil Rules take a liberal stance toward the amendment of

pleadings, consistent with the federal courts’ longstanding policy favoring the

resolution of disputes on the merits.”). Thus, courts should deny leave to amend only

if there is “undue delay, bad faith or dilatory motives,” repeated failure to cure

deficiencies by previously allowed amendments, undue prejudice, or if the

amendment is futile. Foman v. Davis, 371 U.S. 178, 182 (1962).

None of the bases for denying leave are present here. The MDOE filed its

motion to amend within the scheduling order’s deadline. See ECF No. 26. It has not

passed up previous opportunities to amend its answer. The selective enforcement

defense shares a legal basis with the other defenses already pleaded, and there is no

indication that granting leave would unduly prejudice the Government. Compare

Answer (ECF No. 12), with Motion (ECF No. 26). In fact, the Government’s response

to the motion to amend does not mention prejudice. See ECF No. 39. Without

prejudice, leave should be granted unless the amendment is legally frivolous.

See Mascal v. Me. Dep’t of Corr., No. 1:22-cv-00292-JDL, 2023 WL 8003484, at *2 (D.

Me. Nov. 17, 2023) (“The most important factor to consider may be prejudice, if the

court is persuaded that no prejudice will accrue, the amendment should be allowed.”

(cleaned up)).

Selective enforcement as a defense requires two elements: “(1) [that], compared

with others similarly situated, [the defendant was] selectively treated; and (2) that

such selective treatment was based on impermissible considerations such as race,

religion, intent to inhibit or punish the exercise of constitutional rights, or malicious

or bad faith intent to injure a person.” SEC v. Navellier & Associates, Inc.,

108 F.4th 19, 39 (1st Cir. 2024) (cleaned up). As previously noted, the MDOE already

pleaded the legal basis for a selective enforcement defense in its original answer.2

See Answer at 17 (alleging that the United States acted ultra vires and in violation

of the Equal Protection and Due Process clauses of the United States Constitution).

Therefore, the MDOE merely seeks to make explicit what was previously implicit in

its original pleading. Denying such an amendment would be inconsistent with the

basic policy behind Rule 15, which is to decide issues on the merits. See 6 Mary Kay

Kane & Howard M. Erichson, Federal Practice and Procedure § 1487, Westlaw

(database updated Sept. 2025) (explaining that Rule 15’s underlying policy is to have

2 The selective enforcement affirmative defense is rooted in the equal protection and due process

clauses of the Fifth and Fourteenth Amendments to the United States Constitution, depending on

whether it is asserted against a state or federal entity. See Thorpe v. Upper Makefield Twp.,

758 F. App’x 258, 262 (3d Cir. 2018) (“A selective enforcement claim is based on the well-established

principle that discriminatory enforcement of a facially neutral law violates the Equal Protection

Clause.”); Cohen v. Brown Univ., 101 F.3d 155, 182 n.20 (1st Cir. 1996) (“It is well settled that the

reach of the equal protection guarantee of the Fifth Amendment Due Process Clause . . . is coextensive

with that of the Fourteenth Amendment Equal Protection Clause.”).

claims decided on the merits and limit the pleadings’ role to providing notice of the

nature of the dispute); Foman, 371 U.S. at 182.

The Government, as the party opposing the amendment, has the burden of

demonstrating that it is legally frivolous. See, e.g., Mineo v. Town of Hempstead, No.

22-CV-04092 (JMA) 2024 WL 1077874, at *11 (E.D.N.Y. Feb. 23, 2024) (rec. dec.),

aff’d 2024 WL 1072569 (E.D.N.Y. Mar. 12, 2024) (“The party opposing the proposed

amended pleading has the burden of establishing that amendment would be futile.”).

Rather than argue legal futility, the Government disputes the factual sufficiency of

the defense. See Response at 6. Specifically, it asserts that its enforcement actions

have not been selective or targeted, noting that it sent warning letters to three

states—Maine, California, and Minnesota—regarding their compliance with Title IX.

Id. The Government further points to its lawsuit against the California

Interscholastic Federation and highlights multiple ongoing Title IX investigations

across a range of states as evidence of its consistent enforcement efforts. Id.

According to the Government, these actions demonstrate that similarly situated

states are being treated alike, thereby undermining the selective enforcement

defense. Id.

These contentions, however, raise factual questions about whether the states

identified by the MDOE are, in fact, similarly situated and whether enforcement was

uniform. See Navellier & Associates, Inc., 108 F.4th at 39-40 (discussing the elements

of the selective enforcement defense). Such disputes are not suitable for resolution

on a motion to amend a pleading. See, e.g., J.S. McCarthy, Co., Inc. v. Brausse

Diecutting & Converting Equip., Inc., 226 F.R.D. 14, 17 (D. Me. 2005) (“[A Party’s]

urgent and well expressed disagreements with [the] allegations may prove out, but

at this stage, the Court cannot resolve factual disputes.”); see also Fed. R. Civ. P.

8(c)(1) (requiring “a party [to] affirmatively state any avoidance or affirmative

defense” without requiring the defendant to plead facts supporting that defense).

The Government’s remaining arguments regarding the ongoing nature of the

violation and the presumption of regularity similarly do not demonstrate futility.

See Response at 5-7. Selective enforcement focuses on the fairness and

constitutionality of the enforcement, not the timing of the violation. See Abcarian v.

McDonald, 617 F.3d 931, 940 (7th Cir. 2010) (“Equal protection claims are allowed in

such circumstances not because the particular law at issue is facially invalid or

inapplicable to the plaintiff’s conduct, but because of the concern that individuals

with discretion in law enforcement will take advantage of that discretion to oppress

unpopular groups.”); Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471,

511 (1999) (Souter, J., dissenting) (“If authorities prosecute only those tax evaders

against whom they bear some prejudice or whose protected liberties they wish to

curtail, the ongoing nature of the nonpayers’ violation does not obviate the interest

against selective prosecution.”). Therefore, a defendant is entitled to equal

application of the law regardless of the timing of their alleged violation.

As for the presumption of regularity, the presumption “is an analytic tool, not

an excuse to rubberstamp any and all executive action as lawful absent clear evidence

to the contrary.” Walker v. Bellnier, 146 F.4th 228, 255 n.48 (2d Cir. 2025) (quoting

Conley v. United States, 5 F.4th 781, 791 (7th Cir. 2021)). In any event, applying the

presumption to deny amendment under Rule 15 would be premature because

pleading the selective enforcement defense puts the Government on notice that the

MDOE plans to challenge the presumption, but does not properly tee up the issue for

a dispositive ruling at this stage of the litigation. See Federal Practice and Procedure

§ 1471, Westlaw (database updated Sept. 2025) (discussing the two purposes behind

Rule 15).

In sum, leave to amend is warranted because the MDOE’s motion was timely.

See ECF No. 18. The amendment does not prejudice the Government. See ECF

No. 39. Allowing the MDOE to amend and clarify the nature of its affirmative

defenses is consistent with both the purpose of Rule 15 and the notice provided to the

Government in the original answer, which already stated the legal basis for a

selective enforcement defense. See Federal Practice and Procedure § 1487, Westlaw

(database updated Sept. 2025).

III. Conclusion

For the reasons stated above, the motion for leave to amend the answer is

GRANTED with respect to the selective enforcement defense, stating, “The United

States’ claims are barred because the United States is selectively enforcing Title IX

against the Maine Department of Education.” Leave to amend is DENIED as to the

vindictive prosecution defense. The Defendant shall file the amended answer within

three business days of this order.

NOTICE

In accordance with Federal Rule of Civil Procedure 72(a), a party may

serve and file an objection to this order within fourteen (14) days after being

served with a copy thereof.

Failure to file a timely objection shall constitute a waiver of the right

to review by the District Court and to any further appeal of this order.

Dated: December 22, 2025

/s/ Karen Frink Wolf

United States Magistrate Judge