United States District Court, D. Maine
MS. S., individually and as parent, and legal guardian of BS, a minor, Plaintiff,
REGIONAL SCHOOL UNIT 72, Defendant, and MAINE DEPARTMENT OF EDUCATION, Intervenor.
CERTIFICATE OF QUESTIONS OF STATE LAW TO THE MAINE
SUPREME JUDICIAL COURT SITTING AS THE LAW COURT
LEVY U.S. DISTRICT JUDGE.
case involves two questions of law of the State of Maine that
may be determinative of the case and for which there are no
clear controlling precedents in the decisions of the Maine
Supreme Judicial Court. As recognized in Dinan v. Alpha
Networks, Inc., federal-state comity is promoted where
“the state court of last resort [is] given opportunity
to decide state law issues on which there are no state
precedents which are controlling or clearly indicative of the
developmental course of the state law.” Dinan v.
Alpha Networks, Inc., 2013 ME 22, ¶ 12, 60 A.3d 792
(quoting White v. Edgar, 320 A.2d 668, 675 (Me.
1974)). Accordingly, for the reasons explained below, I
hereby certify two questions to the Maine Supreme Judicial
Court sitting as the Law Court and respectfully request the
Law Court to provide instructions concerning these questions
of state law pursuant to 4 M.R.S.A. § 57 (2016) and
Maine Rule of Appellate Procedure 25.
2013, the Plaintiff, Ms. S., filed a request for a due
process hearing with the Maine Department of Education on
behalf of her son, B.S., regarding alleged violations of the
Individuals with Disabilities Education Act
(“IDEA”). 20 U.S.C.A. § 1400, et
seq. (2016). Ms. S. claimed that the violations took
place during BS's ninth grade through twelfth grade years
when BS was a student in Regional School Unit 72 (the
hearing officer granted Ms. S. a limited compensatory remedy
related to a one-month period following BS's dismissal
from high school in December 2011, but otherwise found no
violations of IDEA as to BS's eleventh and twelfth grade
years. The hearing officer dismissed the claims related to
BS's ninth and tenth grade years as time-barred under
§ XVI.13.E of the Maine Unified Special Education
Regulation (“MUSER”), 05-071 C.M.R. ch. 101, a
filing limitation that requires claims to be brought within
two years of when a parent knew or should have known of an
A parent or [School Administrative Unit] must request an
impartial hearing on their due process hearing request within
two years of the date the parent or agency knew or should
have known about the alleged action that forms the basis of
the due process hearing request.
05-071 C.M.R. ch. 101, § XVI.13.E (2017). When Ms. S.
then argued that the two-year filing limitation is void
because it was not passed in compliance with the Maine
Administrative Procedure Act, 5 M.R.S.A. §§
8001-11008 (2016), the hearing officer determined that he
lacked the authority to consider the issue. The questions
presented by this certificate concern the validity of this
sought judicial review in the U.S. District Court, contending
with respect to B.S.'s ninth and tenth grade years that
the two-year filing limitation was void and has no legal
effect. Her argument encompassed two different MUSER
provisions: (1) the filing limitation contained in MUSER
§ XVI.13.E, which is quoted above; and (2) a
“look-back term” contained in MUSER §
XVI.5.A(2) that limits how far back in time a claim may reach
once a parent knows or should have known of an alleged
The due process hearing request must allege a violation that
occurred not more than two years before the date the parent
or [School Administrative Unit] knew or should have known
about the alleged action that forms the basis of the due
process hearing request.
05-071 C.M.R. ch. 101, § XVI.5.A(2) (2017).
to January 2010, both the filing limitation and the look-back
term specified four year periods. 05-071 C.M.R. ch. 101,
§§ XVI.5.A(2), XVI.13.E (Lexis Nexis 2009). In
January 2010, the Maine Department of Education submitted to
the Maine Legislature an emergency regulation that contained
multiple amendments to the MUSER, including an amendment that
reduced the § XVI.5.A(2)'s look-back term from four
to two years. See Dep't of Educ., State of Me.,
05-071 Ch. 101, Maine Unified Special Education Regulation,
Birth to Age Twenty, Emergency Regulation, January 19, 2010,
147. The emergency regulation made no change to §
XVI.13.E's four-year filing limitation. Id. at
157. The Maine Legislature subsequently approved the
emergency regulation as proposed by the Department of
Education. See L.D. 1741 (124th Legis. 2010). When
the Department of Education issued the finally-adopted
regulations as approved by the Maine Legislature, in November
2010, it also revised the text of § XVI.13.E so as to
reduce the filing limitation period from four to two years.
See Dep't of Educ., State of Me., 05-071 Ch.
101, Maine Unified Special Education Regulation, Birth to Age
Twenty, Final Adoption, 2010, 162.
Legislature passed three legislative resolves after 2010,
each containing amendments to MUSER but none of which
addressed or altered the two-year filing limitation contained
in § XVI.13.E. See L.D. 106, 125th Leg. (2011);
L.D. 1724, 125th Leg. (2012); L.D. 323, 126th Leg. (2013). In
2011, the Legislature specifically declined to pass a resolve
that would have changed the filing limitation from two to six
years. See L.D. 662, 125th Legislature (2011); S.
Leg. Rec., 125th Leg., 1st Reg. Sess. at S-684-685; H.R. Leg.
Rec., 125th Leg., 1st Reg. Sess. at H-420.
argues that the Department of Education's revision of the
text of § XVI.13.E in November 2010 so as to reduce the
filing limitation period from four to two years was a
substantive change under the Maine Administrative Procedure
Act, 5 M.R.S.A. §§ 8052, 8072 (2016). Consequently,
she contends that the Department of Education was required,
but failed, to publish the new regulation, to provide notice
for public comment, and to submit the filing limitation
change to the Maine Legislature for review and approval.
Because the Department of Education failed to comply with
these provisions, Ms. S. argues that the two-year filing
limitation contained in § XVI.13.E is void under
§§ 8057 and 8072 of the Maine Administrative
Procedure Act and has no legal effect.
School District argues that the two-year filing limitation is
valid because the Maine Department of Education explicitly
stated that its purpose was to align Maine's limitation
period with IDEA's two-year period, 20 U.S.C.A. §
1415(f)(3)(C) (2016), when it proposed the 2010 MUSER
amendments, and the Maine Legislature intended to amend both
the filing limitation and the look-back period from four to
two years to harmonize the state and federal requirements
when it approved the emergency regulation in 2010.
See Dep't of Educ., State of Me., Notice of
Agency Rule-making Proposal, Proposed Rule Number 98-P, Nov.
24, 2009. Testimony of Susan A. Gendron, Commissioner, Maine
Department of Education, In Support of L.D. 1741, Feb. 8,
2010. The School District also notes that in 2011, the Maine
Legislature declined to pass a resolve that would have
changed the filing limitation from two to six years, and that
this refusal makes clear the Legislature's recognition of
a two-year filing limitation under § XVI.13.E
See L.D. 662, 125th Legislature (2011); S. Leg.
Rec., 125th Leg., 1st Reg. Sess. at S-684-685; H.R. Leg.
Rec., 125th Leg., 1st Reg. Sess. at H-420. Finally, the
School District also argues that if the 2010 filing