80Bs and Section 1983


The SJC decided what I think is an important new 80B case yesterday -  Gorham v. Androscoggin County, 2011 ME 63 http://www.courts.state.me.us/court_info/opinions/2011%20documents/11me63go.pdf.  The holdings not only make sense but I think fix some squirrely issues in existing precedent.  I'm slightly tentative, however, because there's some language in the decision in getting to these results that I don't entirely understand.

First the facts, which are simple: a county employee was fired, he said without due process.  He files an 80B appeal (remember 80C applies when its a state agency decision governed by the APA; Rule 80B applies to all other administrative appeals absent a specific statute like 35-A M.R.S. 1320).  With that direct appeal, he files an independent civil rights claim under 42 U.S.C. s. 1983.  

Issue #1.  The timing of the written termination notice was such that the plaintiff filed his appeal more than 30 days after the termination vote, but within 30 days of receipt of the written order.  Timely under Rule 80B?  The holding here is that you start the clock from the written order, not the vote. 

This is an excellent development.  As a footnote acknowledges, before this ruling there was some precedent that seemed to start the clock on the date of the vote.  This led to some tricky questions when the written decision wasn't getting out before the clock ran starting at vote time.  The clock is jurisdictional (basically – we'll leave that issue for another time), so you'd have to file a Rule 80B within 30 days of the vote.  This made no sense because, among other things, you don't know the formal basis of the decision until the written findings and conclusions are issued.  And once you appeal, does the agency even have jurisdiction then to issue its written decision?  To be absolutely safe, you'd need to get a remand from your premature Rule 80B, then go back up to court when the written decision came out.  A big fat mess. 

So to the extent this ruling fixes that problem and lets you wait until the written decision is issued to appeal, yay.

My only hesitation here is, first, there's some loose language at page 6 of the reasoning getting to this holding that might be read the wrong way in some contexts.  The Court (Levy, J.) says "To read 'notice of any action' [the language in Rule 80B saying from whence the 30-day clock begins] in a way that allows appeals of non-final administrative actions would lead to absurd results that the drafters of the rule could not have intended."

To the extent this language could be read as saying that you can never file a Rule 80B before a final decision, that would seem a little too sweeping to me.  It's rare, but the APA and thus Rule 80C allows appeals of non-final agency decisions when you have to appeal immediately to avoid irreparable harm.  You also at some point get to sue when the agency doesn't act, although there's no final action (that's Rule 80B replacing the writ of mandamus).  Rule 80B was to replace the writs in general, so if you could sue under the writ when a decision was not final, I don't think Rule 80B was intended to wipe out that ability entirely.

So I'm pretty sure we aren't supposed to read that language as any kind of articulation of a position that there are absolutely no administrative appeals of non-final agency actions.

Second, it's a little mysterious to me why the Court was so careful to limit its ruling that the clock begins from the date of the written decision only in the context of when it's an employee dismissal.  See, e.g., p.10:  "Accordingly, we hold that, for the purposes of Rule 80B(b), 'notice of any action' involving the dismissal of a county employee pursuant to 30-A M.R.S. s. 501(3)(A) occurs when the employee receives a copy of the written decision of the county commissioners or personnel board required by 1 M.R.S. s. 407(2)."  

I'm all for making holdings as limited as reasonable, but this is a jurisdictional question where some general guidance would be helpful.  More often the timing issue comes up not in employee dismissals, but when a local board takes its time after voting on a permit application before issuing the written decision (which it often, prudently, has another vote to approve, which takes time).  Is it safe to wait in that context, too?  Logically, yes.  Section 407(1) requires written decisions of any agency that grants or denies a permit – so wouldn't the same reasoning applied in this case under Section 407(2) apply to local land use board decisions, too?  While "agency" isn't defined in the FOAA statute containing Section 407, the SJC has previously at least assumed it meant a local as well as state agency, see Carroll v. Town of Rockport, 2003 ME 135, 837 A.2d 148 [http://www.courts.state.me.us/court_info/opinions/2003_documents/03me135ca.htm].)

In sum, it would have been helpful, in this particular context, to have some direct guidance and a broader holding if possible.  It still may not be 100% certain that you can wait in the local permitting context, and, again, this is jurisdictional, so if you get this wrong, it's over.   

In the second part of the decision, the Court rules that the plaintiff can pursue his independent claim.  That also seems right on to me, although again there's some language getting there that gives me pause.

The Court notes that a procedural due process claim usually can't be pursued outside the Rule 80B itself under Parratt v. Taylor, 451 U.S. 527 (1981), which provides that post-deprivation state remedies are usually adequate responses to random alleged procedural violations.  With job dismissals, however, the SJC has found that you need a pre-deprivation hearing, and "[b]ecause this alleged deprivation … occurred before the Commissioners' administrative hearing, we cannot, on this record, conclude that direct review pursuant to Rule 80B would provide an adequate remedy for Gorham's s. 1983 claim." (p. 13).

Again, first a big yay for making the point about Parratt.  Lots of plaintiffs seem to think that whenever they don't like the procedures used in denying their permit by a board, they can tack on a civil rights claim to their Rule 80B.  They can't.

But the reason they can't is because the claim fails on its face - in instances where post-deprivation process is enough, there is no civil rights claim — it fails to state a claim as a matter of law — because there is no constitutional violation.  You can get the mistake fixed through the 80B appeal so there is no constitutional violation in the first place.  The procedural mistake doesn't arise to a constitutional level. 

The language I quoted above in the decision about the record not being such as to see if Rule 80B is adequate is a little opaque to me.  You can always expand a Rule 80B record, so the state of the record shouldn't be the touchstone whether you can assert an independent claim.  There are instances in which the plaintiff doesn't have a federal action in the first place because the state avenue is good enough to prevent a constitutional violation from happening, thus defeating the federal claim on its merits; but the state court can never tell a plaintiff suing under a federal cause of action that he can't use that avenue because the state believes that the state avenue is adequate.  Remember, you get your attorneys fees in civil rights claims under federal law.  As long as you can state a viable civil rights claim, the state court can't just say you are limited to your direct administrative appeal and deny you rights provided under a fedeal statute.

It might be easier to see this when you aren't dealing with a due process claim.  Say a board denied a permit because the applicant was black.  The plaintiff sues under Rule 80B and Section 1983 for violation of his equal protection rights.  First of all, the Rule 80B claim isn't "adequate" because if it's municipality, there may be damages under Section 1983, and you can't get damages under Rule 80B.  But even if it was a state agency and a Rule 80C action, so there were no damages under Section 1983, I don't think that the state court could dismiss the equal protection claim simply because the injunctive relief allowed under Section 1983 was also available under Rule 80B.  If the court granted the injunctive relief under the Rule 80C, it might ultimately not rule on the civil rights claim, because it doesn't have to reach it — but the plaintiff would still be entitled to his attorney's fees.  See Bangs v. Town of Wells, 2000 ME 186, 760 A.2d 632 [http://www.courts.state.me.us/court_info/opinions/documents/00me186b.htm]. 

In sum, as a procedural matter, I think a Section 1983 claim is always "independent" and cannot be rejected on the basis of adequacy of the Rule 80B or Rule 80C direct remedy.  That said, there may be many reasons why the Section 1983 claim would fail on its face, such as the availability of the Rule 80B avenue making the process "adequate" from a constitutional perspective if the independent claim is based on a procedural due process violation.

In the end, this may just be semantics – the "adequacy" concept in Rule 80B, Justice Levy may have been saying, applies when post-deprivation remedies are deemed sufficient as a matter of constitutional law; conversely, the "adequacy" concept does not apply when constitutional principles do not deem the post-deprivation Rule 80B review adequate.  If so, then that makes sense to me.