ORDER ON MOTION TO DISMISS
Mallinckrodt LLC, corporate descendant of a firm previously involved in the production of chemicals used in the manufacture of paper, brings this action against the Maine Department of Environmental Protection (MDEP), the Commissioner of the MDEP (Commissioner), and the Maine Attorney General (Attorney General) to enjoin enforcement of an administrative order (Order) directing remedial action at a former manufacturing facility and landfill area. 1 Before the Court is Defendants’ motion to dismiss on abstention grounds or, alternatively, for failure to state a claim. Defs.’ Mot. to Dismiss Pls.’ First Am. Compl. (Docket # 30) (Defs.’ Mot.). Because the elements mandating Younger abstention are satisfied and no exception applies, the Court grants the motion.
A. The Site
In 1967, a corporate predecessor to Mallinckrodt began operating a manufacturing facility in Orrington, Maine (the Site), adjacent to the Penobscot River. First Am. Compl. ¶ 50 (Docket # 29) (Am.Compl.).The facility’s primary purpose was to produce chemicals used in Maine’s paper mills. Id. ¶ 60. A byproduct of the chemical production process was brine sludge, a waste product containing mercury and other contaminants, which the facility primarily disposed in five landfills at the Site. Id. ¶¶ 61-63.
In 1982, the Site was sold to Hanlin Group, Inc. (Hanlin). Id. ¶ 52. In 1986, the federal Environmental Protection Agency (EPA) began to take measures to address contamination near the Site. Id. ¶ 65. In 1991, a corporate predecessor of Mallinckrodt entered into a Settlement Agreement with Hanlin to resolve a related lawsuit over responsibility for the contamination; the Agreement bound Mallinckrodt’s predecessor to pay a portion of the investigation and clean-up costs. Id. ¶ 66. In 1993, the EPA and Hanlin entered into a Consent Decree under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901 et seq., requiring a phased study of the Site, development of possible corrective measures, and, ultimately, final remedial measures. Id. ¶¶ 67-70.
In 1994, Hanlin declared bankruptcy, and the Site was sold to HoltraChem Manufacturing Company, LLC (HoltraChem); HoltraChem thereby succeeded to Hanlin’s responsibilities under the Consent Decree. Id. ¶¶ 54, 71. In 1997, the EPA and the MDEP entered into a Memorandum of Agreement under which the EPA retained authority for determining the remedy at the Site. Id. ¶¶ 75-76. From 1995 through 2000, HoltraChem and Mallinckrodt worked with the MDEP and the EPA to take remedial measures towards implementing the Consent Decree. Id. ¶¶ 77-85. HoltraChem ceased operation in 2000 and dissolved in 2001, leaving Mallinckrodt solely responsible for implementing the Consent Decree. Id. ¶¶ 55-56, 71-72.
B. Politicization of the Site and the MDEP Order
Following HotraChem’s dissolution, Mallinckrodt continued to take steps towards implementing the Consent Decree. Id. ¶¶ 86-101. On May 27, 2003, Mallinckrodt completed and submitted to the MDEP and the EPA a Corrective Measures Study (CMS) evaluating remedial options for the Site. Id. ¶ 90. After receiving comments from the MDEP and the EPA, Mallinckrodt submitted a Revised CMS evaluating and ranking clean-up options. Id. ¶¶ 91-92. Among the options, the Revised CMS recommended stabilizing and capping the landfills. See id. ¶ 104.
On November 22, 2004, the MDEP requested that Mallinckrodt further examine two alternatives to the remedy Mallinckrodt recommended in the Revised CMS.
Id.
¶ 99. After conducting the requested analysis, a consulting firm acting on behalf of Mallinckrodt concluded that the Revised CMS recommendation remained preferable because the two alternatives would cause unnecessary adverse environmental consequences and would endanger neigh
Support for stabilization and capping was not, however, unanimous. The Maine People’s Alliance and other groups pressured the Governor’s Office and the MDEP to excavate and remove all mercury from the Site. Id. ¶¶ 114-17. At a meeting on August 29, 2005 among the Governor, the Commissioner, and the Director of the MDEP’s Bureau of Remediation and Waste Management, the Governor directed the MDEP to pursue this alternative remedy. Id. ¶¶ 118-21. To date, no study has demonstrated that the remedy favored by the Governor, excavation and removal, will provide superior protection to the public or the environment when compared with the remedy recommended by the Revised CMS, stabilizing and capping. Id. ¶¶ 123-27.
Since 2003, Mallinckrodt has implemented a multi-phase MDEP-approved plan for dismantling and removal of buildings and equipment at the Site. Id. ¶¶ 128-33. On July 2, 2008, the MDEP informed Mallinckrodt that it “was making good progress on completing the current phase of the dismantling work.” Id. ¶ 134. Mallinckrodt has continued to work according to the approved plan, and there is evidence that contaminant levels at the Site are declining. Id. ¶¶ 135-41. Mallinckrodt states that “[t]here are no exigent environmental or other circumstances impacting the Site that require emergency action.” Id. ¶ 142.
Nevertheless, on September 11, 2008 the MDEP informed Mallinckrodt that it was about to issue an administrative compliance order requiring Mallinckrodt to implement the Governor’s preferred remedy — excavation of contaminated soil at all five landfills and removal to Canada for disposal, id. ¶ 143, and on November 24, 2008 the Commissioner signed an order to this effect. Id. ¶¶ 146^8. The next day the Bangor Daily News ran an article reporting on the Order, id. ¶ 150, and the Commissioner participated in a radio interview discussing the Order. Id. ¶ 151. The Commissioner served the Order on Mallinckrodt on December 5, 2008 pursuant to 38 M.R.S.A. § 1365(1). Id. ¶¶2,152.
C. Mallinckrodt’s Response
On the same date it received the Order, Mallinckrodt filed this action in federal court against the MDEP, the Commissioner, and the Maine Attorney General challenging the constitutionality of various aspects of Maine’s Uncontrolled Hazardous Substances Sites Act, 38 M.R.S.A. §§ 1361
et seq.,
and seeking an injunction to prevent Defendants from enforcing the Order and a declaratory judgment that the Order is unlawful.
Compl.; Am. Compl.
3
Also on December 5, 2008, Mallinckrodt moved for a temporary restraining order (TRO).
Mot. for TRO and Prelim. Inj.
(Docket #4). On December 8, 2008, the Court denied Mallinckrodt’s TRO motion for failure to establish the potential for irreparable harm.
Order Denying Mot. for TRO
(Docket # 14). On December 19, 2008,
Meanwhile, on December 31, 2008, the Defendants moved to dismiss Mallinckrodt’s Complaint. Defs. ’ Mot. On January 9, 2009, Defendants opposed Mallinckrodt’s stay request before the Board, noting that a motion to dismiss had already been filed in the federal matter. Pis.’ Opp’n at Attach. 1 (Docket # 33-2) (Stay Order). Nevertheless, on January 16, 2009 the Board granted the stay:
In the interest of resource economy, and without speaking to the merits of the substantive issues raised by either Mallinckrodt or the Commissioner in their filings with the U.S. District Court ... the Board hereby grants an administrative stay of its proceedings in the matter of the appeal of the Commissioner’s Order until the U.S. District Court rules on the Commissioner’s motion to dismiss .... The Board will re-evaluate its schedule for this appeal proceeding following the Court’s ruling on the motion to dismiss and determine an appropriate and timely course of action.
Id. On January 21, 2009, Mallinckrodt filed an opposition to Defendants’ motion to dismiss, Pis.’ Opp’n, and the Defendants replied on February 2, 2009. Defs. ’ Reply in Support of Their Mot. to Dismiss (Docket # 34) (Defs.’ Reply). The Court heard oral argument on May 4, 2009.
D. The State Administrative Process
Under the Maine Uncontrolled Hazardous Substances Sites Act, upon a finding that a location where hazardous substances were handled “may create a danger to the public health, to the safety of any person or to the environment,” the Commissioner of the MDEP may designate the location as an uncontrolled hazardous substance site, order “any responsible party dealing with the hazardous substances to cease immediately or to prevent that activity and to take an action necessary to terminate or mitigate the danger or likelihood of danger,” and order “any person contributing to the danger or likelihood of danger to cease or prevent that contribution.” 38 M.R.S.A. § 1365(1).
The recipient of an order under 38 M.R.S.A. § 1365(1) “shall comply immediately,” but may also “apply to the board for a hearing on the order if the application is made within 10 working days after receipt of the order.” 38 M.R.S.A. § 1365(4). According to the statute,
[wjithin 15 working days after receipt of the application, the board shall hold a hearing, make findings of fact and vote on a decision that continues, revokes or modifies the order. That decision must be in writing and signed by the board chair ... and published within 2 working days after the hearing and vote. The nature of the hearing before the board is an appeal. At the hearing, all witnesses must be sworn and the commissioner shall first establish the basis for the order and for naming the person to whom the order is directed. The burden of going forward then shifts to the person appealing to demonstrate, based upon a preponderance of the evidence, that the order should be modified or rescinded.
Id.
A hearing before the Board constitutes an “adjudicatory proceeding” under Maine’s Administrative Procedure Act (APA), and as such, a number of procedural protections are statutorily mandated.
See
5 M.R.S.A. §§ 8002(1), 9051;
The Board consists of ten members appointed by the Governor, subject to review by the joint standing committee of the Maine Legislature having jurisdiction over natural resource matters and to confirmation by the Legislature. 38 M.R.S.A. § 341-C(1). The Commissioner provides the Board with the technical services of the MDEP. 38 M.R.S.A. § 342(11-A). The Board is funded by the Board of Environmental Protection Fund (the Board Fund). 38 M.R.S.A. § 341-G. The Board Fund, in turn, is funded in part by the .Maine Hazardous Waste Fund, which is itself funded in part by fees imposed on the transport of hazardous waste. Id.; 38 M.R.S.A §§ 1319-D, 1319-1(2). The Maine Hazardous Waste Fund makes an annual transfer to the Board Fund capped at $325,000; however, the Board may expend money in the Board' Fund only in accordance with allocations approved by the Legislature. 38 M.R.S.A. § 341-G.
A decision of the Board may be appealed to the Superior Court. 38 M.R.S.A. § 1365(4); 5 M.R.S.A. § 11001(1). A decision of the Superior Court may be appealed to the Maine Supreme Judicial Court. 5 M.R.S.A. § 11008. Notwithstanding the appeal provisions, a party who, “without sufficient cause,” fails to act “promptly in accordance with an order ... may be liable to the State for punitive damages in an amount at least equal to, and not more than 3 times, the amount expended by the commissioner as a result of such failure to take proper action.” 38 M.R.S.A. § 1365(6). Further, “[t]he [Maine] Attorney General is authorized to commence a civil action against any such responsible party to recover the punitive damages, which are in addition to any fines and penalties established pursuant to [38 M.R.S.A. § 349].” Id. Section 349 allows for civil penalties “of not more than $25,000 for each day of the violation” for failure to comply with the terms and conditions of a hazardous waste order. 38 M.R.S.A. § 349(2). Criminal penalties are possible if a party “intentionally, knowingly, recklessly or with criminal negligence” violates the terms of an order. 38 M.R.S.A. § 349(1). Any money received by the Commissioner pursuant to 38 M.R.S.A. § 1365(6) “must be deposited in the Uncontrolled Sites Fund.” 38 M.R.S.A. § 1365(6).
II. ANALYSIS
Defendants move to dismiss all counts in Plaintiffs’ First Amended Complaint (Complaint). They argue, “[u]nder the doctrine
A. Younger Abstention
Younger
abstention arises “from strong policies counseling against the exercise of ... jurisdiction where particular kinds of state proceedings have already been commenced.”
Ohio Civil Rights Comm’n v. Dayton Christian Schools, Inc., 477
U.S. 619, 626,
Younger
abstention is mandatory, not discretionary,
see Rio Grande Cmty. Health Ctr., Inc. v. Rullan,
(1) with an ongoing state judicial proceeding; (2) that implicates an important state interest; and (3) that provides an adequate opportunity for the federal plaintiff to advance his federal constitutional challenge.
Rossi v. Gemma,
Extraordinary circumstances include those situations in which ‘core constitutional values are threatened during an ongoing state proceeding and there is a showing of irreparable harm that is both great and immediate.’ Maymo-Melendez,364 F.3d at 37 (internal quotation marks omitted). Among those extraordinary circumstances are cases in which extreme bias completely renders a state adjudicator incompetent and inflicts irreparable harm upon the petitioner. [Gibson v. Berryhill,411 U.S. 564 , 577,93 S.Ct. 1689 ,36 L.Ed.2d 488 (1973)]; accord Kugler v. Helfant,421 U.S. 117 , 125 n. 4,95 S.Ct. 1524 ,44 L.Ed.2d 15 (1975) (recognizing Gibson bias as an example of the ‘exceptional circumstances’ which warrant federal intervention).
Esso II,
1. Ongoing State Judicial Proceeding
Turning to the three-part test for
Younger
abstention, the first test is met, since the proceeding before the Board is judicial in nature in that it involves “ ‘[a] judicial inquiry [that] investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist.’ ”
Bettencourt v. Bd. of Registration in Med.,
The application of the second test — ongoing state judicial proceeding — is more complicated. The First Circuit has instructed that “[i]n determining whether federal proceedings would interfere with
ongoing
state proceedings, the proper point of reference is the date plaintiff filed his federal complaint.”
Bettencourt,
904
The parties disagree whether the state proceeding commenced before or after the filing of Mallinckrodt’s complaint on December 5, 2008, and therefore whether it was pending as of “the date plaintiff filed [its] federal complaint” under Bettencourt. The Defendants contend that the critical date is November 24, 2008, the date the MDEP issued the Order, and conclude there was a state proceeding pending as of December 5; Mallinckrodt responds that the critical date is December 19, the date Mallinckrodt appealed the Order to the Board, and says there was no state proceeding as of December 5.
As the First Circuit has not squarely addressed the question, the Court turns for guidance to decisions by other courts. The Eastern District of Virginia dealt with a similar issue in
Kim-Stan, Inc. v. Department of Waste Management,
The Defendants also cite
Barker v. Ripley,
Prior to
Bettencourt,
the Supreme Court held that
Younger
is appropriate when the state proceedings are initiated before any proceedings of substance on the merits have taken place in the federal court.
Hicks v. Miranda,
The interplay between
Hicks
and
Bettencourt
is not obvious. In
Wal-Mart Stores, Inc. v. Rodriguez,
addressing a similar issue, the District Court of Puerto Rico observed that the federal courts have “gradually but nonetheless with utmost caution, developed the scope of reach of the
Younger
doctrine.”
When the state proceedings commence after the filing of the federal action, a court’s analysis in deciding to either abstain or proceed should focus on two out of the three factors of the Younger abstention framework. First, abstention is proper if the state court proceedings will provide the federal plaintiffs with an adequate opportunity to raise their constitutional challenge. [Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423 , 432,102 S.Ct. 2515 ,73 L.Ed.2d 116 (1982)]. Second, the progress of the federal action must be considered and abstention is proper if the there have been no ‘proceedings of substance on the merits ... in the federal court.’ Hicks,422 U.S. 332 , 349,95 S.Ct. 2281 (1975).
Id. at 207.
Here, the Wal-Mart analysis favors abstention. Mallinckrodt does not contest that it will have an opportunity to raise its constitutional challenges in ongoing state proceedings, and under Hicks, the Court’s denial on December 8, 2008 of Mallinckrodt’s motion for a TRO may not constitute a proceeding of substance on the merits.
Further, assuming the state proceeding did not commence until December 19, 2008, almost fifteen days after the federal complaint was filed, the question is whether
Bettencourt
commands that
Younger
not apply. The Court concludes it does not. First, Mallinckrodt does not contest that the Board proceeding is ongoing for the purposes of
Younger
abstention. Second, the First Circuit has counseled against an overly rigid application of the
Younger
tests.
See Maymo-Melendez,
Apparently conceding that the Board’s stay has no effect whether the state administrative proceeding is “ongoing,”
4
Mallinckrodt argues that “[t]he bases for
Younger
abstention, federalism and comi
Mallinckrodt’s argument is unconvincing. First,
Younger
abstention is founded on twin concerns: 1) the federal courts presume “the state courts are as capable as their federal counterparts of guaranteeing federal rights”; and, 2) “[r]elated to this presumption of equal competency is the concept of comity, which counsels federal courts to be sensitive to the existence of a parallel system of state governance.”
Bettencourt,
Second, even assuming that the voluntary relinquishment of the authority of the state to proceed should affect the Younger analysis, the language of the stay does not suggest that the Board has voluntarily relinquished its intention to proceed with the administrative appeal. The Board stayed its proceeding only until this Court acts on the pending motion to dismiss, and the Board’s Order expressly states that it “will re-evaluate its schedule for this appeal proceeding ... and determine an appropriate and timely course of action.” Stay Order. The Board’s Order merely stays Board action until the resolution of this motion and contemplates further action by the Board regardless of this Court’s decision.
Finally, under First Circuit law, so long as the three
Younger
abstention elements are met, abstention is mandatory absent exceptional circumstances.
See Rullan,
As to the second
Younger
element, the state interest must be defined broadly: “we do not look narrowly to its interest in the
outcome
of the particular case — which could arguably be offset by a substantial federal interest in the opposite outcome. Rather, what we look to is the importance of the generic proceedings to the State.”
NOPSI,
Here, Defendants argue that Maine “has an important interest in the health and safety of its citizens, including enforcing its environmental laws and protecting citizens from potential environmental hazards like the facility issue here.” Defs. ’ Mot, at 7. Mallinckrodt counters that the Board proceeding “is not entirely about those interests,” but rather “is also about the Governor’s unconstitutional interference in the remedy selection.” Pls.’ Opp’n at 5. According to Mallinckrodt, “[t]here can be no important state interest in permitting the Governor to violate due process by exceeding his constitutional powers, usurping the Department’s authority, and injecting political factors into decisions with regard to the clean-up.” Id. Specifically, Mallinckrodt claims that the important state interest requirement has not been met with respect to Count Five, which alleges that “[t]he Governor has selected the remedy contained in the Order in violation of Mallinckrodt’s due process rights.” Am. Compl. ¶ 208.
Mallinckrodt relies heavily upon
Addiction Specialists, Inc. v. Township of Hampton,
even if the federal claims at issue do not themselves implicate important state interests, certain aspects of the requested relief may potentially interfere with the state proceeding. Specifically, a grant of injunctive relief in federal court may result in a de facto review of the township’s zoning decisions currently under review in the state courts. In other words, even though many of [the company’s] claims do not directly involve important state interests, abstention may still be appropriate if a federal injunction preventing the Township from acting in a discriminatory manner would have the effect of enjoining state proceedings that do involve important state interests.
Id. at 410 (citations and quotations omitted).
Here, the validity of the Order, including the manner in which the clean-up remedy was selected, is now before the Board. Federal review of the lawfulness of the Order at this juncture, not to mention a federal injunction or a declaratory judgment that the Order is unlawful, would necessarily interfere with the Board’s ongoing review of the Order, a state proceeding which implicates important state interests related to public health and the environment.
3. Adequate Opportunity to Advance Federal Constitutional Challenges
For the purposes of the third
Younger
element, “it is sufficient ... that constitu
B. Bias
As all three
Younger
elements are satisfied, abstention is required unless an exception applies.
See Rullan,
1. Gibson v. Berryhill
In
Gibson,
an organization of independent practitioner optometrists filed charges with the Alabama Board of Optometry (ABO) against several optometrists who were salaried employees of a corporation.
Gibson,
2. jEsso
Recently, the First Circuit affirmed a finding of
Gibson
bias in an environmental case.
Esso II,
Esso II involved allegations of both structural and actual bias. Id. at 141,145-48. First, under Puerto Rico law, the proposed penalty of $76 million would go directly into an account administered at the complete discretion of the EQB. Id. at 146-47 (characterizing the proposed fine as “unprecedented and extraordinarily large” and noting that the sum was twice the EQB’s annual operating budget and 5,000 times greater than the largest fine it had ever imposed). Second, the Hearing Examiners presiding over administrative hearings and making fine recommendations to the EQB were independent contractors paid a fixed hourly rate out of the same account into which fines were deposited and were dependent on the EQB for case assignments, thus rendering them vulnerable to temptation to make recommendations favorable to the EQB. Id. at 147. Third, there was evidence that the Puerto Rico Senate had threatened criminal prosecution of EQB officials for failure to timely respond to the gasoline spill. Id. at 148. Taken as a whole, the First Circuit concluded that there was “a strong appearance of bias and, additionally, undisputed evidence of actual bias in these proceedings.” Id 7
3. Mallinckrodt’s Allegations
Mallinckrodt alleges both actual and structural bias. Pls.’ Opp’n at 7-8; Am. Compl. ¶¶ 172-95. It alleges that the Board and the MDEP share the same legal team, Am. Compl. ¶¶ 177-81, and the same technical staff, id. ¶¶ 182-89; that the Board (along with the MDEP) has a financial interest in the outcome of Mallinckrodt’s appeal and the selected remedy, id. ¶¶ 190-92; that 38 M.R.S.A. § 1365 creates an unconstitutional presumption that the MDEP Order is valid by placing the burden of proof on appeal on Mallinckrodt, id. ¶ 193; and, that the Governor’s interference constitutes actual bias, id. ¶ 194.
a. Legal Team Overlap
Mallinckrodt argues that “[b]ias exists because the [MDEP] (the prosecutor) and the Board (the judge and jury) share
“Without a showing to the contrary, state administrators ‘are assumed to be men of conscience and intellectual discipline.’ ”
9
Withrow v. Larkin,
In 1989, the Maine Law Court discussed the special role played by the Maine Attorney General.
Superintendent of Ins. v. Attorney Gen.,
In sum, we conclude that when the Attorney General disagrees with a state agency, he is not disqualified from participating in a suit affecting the public interest merely because members of his staff had previously provided representation to the agency at the administrative stage of the proceedings. Other less drastic means of insuring effective representation for state officers and agencies exist.
Id.
at 1204. The Law Court endorsed and quoted “the practical resolution” adopted in
State ex rel. Attain v. Miss. Pub. Serv. Comm’n,
Mallinckrodt’s allegations of systematic bias must be measured against this legal backdrop. Even though on a motion to dismiss, the Court is required to assume
b. Technical Staff Overlap
Mallinckrodt protests the sharing of technical staff between the MDEP and the Board, alleging that “[t]he Board relies for technical advice on the very agency staff that wrote the Order and will prosecute it before the Board.” Pls.’ Opp’n at 11-12; Am. Compl. ¶¶ 182-89. Specifically, it contends that the Board utilizes MDEP staff, typically the same staff involved in drafting MDEP orders, to review and analyze technical arguments made before the Board, Am. Compl. ¶ 183; that the MDEP has no scientific or technical staff of its own, id. ¶ 184; that the only MDEP staff members familiar with the Site are those who were involved in drafting the Order, id. ¶ 185; that the Board has an established pattern and practice of obtaining technical advice from the MDEP staff involved in the decisions contained in the Order, id. ¶ 186; that the MDEP staff who will likely serve as the Board’s technical advisors will also be witnesses in the appeal, id. ¶ 187; that even if the Board identified only previously uninvolved staff the political manner in which the Order was selected infuses the entire MDEP staff with bias, id. ¶ 188; and, that the MDEP neither has formal nor informal rules of conduct regarding ex parte contacts between MDEP staff and the Board regarding issues on appeal, id. ¶ 189.
Mallinckrodt quotes Withrow for the proposition that “when review of an initial decision is mandated, the decisionmaker must be other than the one who made the decision under review.” Pls.’ Opp’n at 12. This is not the situation here. According to the Complaint, the decision to issue an Order was made by the Commissioner under pressure from the Governor. See Am. Compl. ¶¶ 118-20, 148-49. Indeed, the MDEP technical staff preferred the same remedy as Mallinckrodt. Id. ¶¶ 102-13. Pursuant to 38 M.R.S.A. § 1365(4), the decisionmaker on appeal will be the Board. Mallinekrodt’s argument seems to be that, because the MDEP technical staff drafted the Order, it is as if the staff issued the Order, and because the Board relies on the technical staff for advice, it is as if the technical staff will make the Board’s decision on appeal. This theory both attributes more influence to the technical staff than the allegations in the Complaint support and unjustifiably discounts the ability of the Board to fairly assess the reliability and credibility of its advisors.
Mallinckrodt’s Complaint indicates that the MDEP technical staff was involved in investigating and drafting the Order and will be involved in an advisory capacity in adjudicating the Order.
11
Under
Withrow,
The contention that the combination of investigative and adjudicative functions necessarily creates an unconstitutional risk of bias in administrative adjudication has a much more difficult burden of persuasion to carry. It must overcome a presumption of honesty and integrity in those serving as adjudicators; and it must convince that, under a realistic appraisal of psychological tendencies and human weakness, conferring investigative and adjudicative powers on the same individuals poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.
c. Financial Interest
According to the Complaint, the Board and the MDEP have a financial interest in the outcome of Mallinckrodt’s appeal. Am. Compl. ¶ 190. Specifically, if the remedy proposed by the Order is implemented, Mallinckrodt alleges that it would generate $14.4 million in fees which would, in part, go into the coffers of the Board and the MDEP. Id. ¶¶ 191-92; Pls.’ Opp’n at 4 n. 2.
The parties have provided scant information on the funding of the MDEP. As for the Board, Maine law provides that it is funded by the Board of Environmental Protection Fund (Board Fund), 38 M.R.S.A. § 341-G, which is funded in part by several other funds, including the Maine Coastal and Inland Surface Oil Clean-up Fund, 38 M.R.S.A. § 551, the Ground Water Oil Clean-up Fund, 38 M.R.S.A. § 569-A, and the Maine Hazardous Waste Fund, 38 M.R.S.A. 1319-D. Defs.’ Mot. at 10-11. The Hazardous Waste Fund is funded in part by fees imposed on the transport of hazardous waste. 38 M.R.S.A. § 1319-D. The annual transfer to the Board Fund from the Hazardous Waste Fund is capped at $325,000 per year, and Board Fund money may only be expended in accordance with allocations approved by the Maine Legislature. 38 M.R.S.A. § 341-G. Members of the Board are volunteers and receive a legislative per diem for attendance at Board meetings and hearings, meal allowances, and travel expenses. 5 M.R.S.A. § 12004-D(2); 38 M.R.S.A. § 341-C(6).
In
New York State Dairy Foods, Inc. v. Northeast Dairy Compact Commission,
When an adjudicator has a direct, personal, and substantial pecuniary interestin the outcome of a case, due process is abrogated. See Tumey v. Ohio, 273 U.S. 510 , 523,47 S.Ct. 437 ,71 L.Ed. 749 (1927). Not every interest, however, is substantial enough to amount to a violation of due process. In one formulation, an interest is substantial if it “would offer a possible temptation to the average ... judge to ... lead him not to hold the balance nice, clear and true.... ’ Ward v. Village of Monroeville,409 U.S. 57 , 60,93 S.Ct. 80 ,34 L.Ed.2d 267 (1972); see also Aetna Life Ins. Co. v. Lavoie,475 U.S. 813 , 822,106 S.Ct. 1580 ,89 L.Ed.2d 823 (1986). Participation of adjudicators who ‘might conceivably have had a slight pecuniary interest,’ however, does not offend due process. See Aetna Life Ins. Co.,475 U.S. at 825 ,106 S.Ct. 1580 .
Later, in Esso I, it addressed institutional bias:
[A] pecuniary interest need not be personal to compromise an adjudicator’s neutrality. See United Church of the Med. Ctr. v. Med. Ctr. Comm’n,689 F.2d 693 , 699 (7th Cir.1982) (‘The Commission has a pecuniary interest in the outcome of the reverter proceedings, because ... in the event of a subsequent sale of the property, the proceeds redound to the coffers of the Commission. This is sufficient under the [Gibson v.] Berryhill rule to mandate disqualification of the Commission ... and require that the reverter proceedings provisions of the statute be held unconstitutional.’); see also Ward v. Village of Monroeville,409 U.S. 57 , 59-60,93 S.Ct. 80 ,34 L.Ed.2d 267 (1972) (concluding that the city mayor was an unconstitutionally biased adjudicator where fines he imposed for traffic offenses provided a substantial portion of village funds).
Mallinckrodt makes no claim that the individual Board members, volunteers all, have a personal pecuniary interest in the remedy selected at the Site. This distinguishes Mallinckrodt’s claim from
Gibson
and
Esso.
In
Gibson,
the independent optometrists comprising the ABO stood to gain personally from the exclusion of employee optometrists from their state.
Gibson,
Esso also involved institutional bias. The First Circuit noted that “the EQB Governing Board members [were] salaried and thus [had] no personal pecuniary interest in the fines imposed and collected by the agency.” Id. at 146 (emphasis in original). Nevertheless, the EQB Governing Board had an institutional interest in levying fines because any collected fines were deposited in a Special Account over which the EQB Board had complete discretion:
[T]his is a case in which the EQB has complete discretion over the usage of those funds which are supplied, at least in part, by fines which it imposes. In this particular case, the possibility of temptation is undeniable and evident in the fact that the size of the proposed fine in this case is so unprecedented and extraordinarily large. The $76 million proposed fine — a sum twice the EQB’s annual operating budget and 5,000 times greater than the largest fine ever imposed by the EQB — only intensifies the appearance of bias infecting the proceedings.
The
Esso
Court cited a trio of Supreme Court cases involving due process challenges and mayors in Ohio, the most recent of which Mallinckrodt refers to approvingly in its memorandum.
Id.
(citing
Tumey v. Ohio,
Dugan
also involved prohibition law violations and fines imposed in a mayor’s court, this time in Xenia, Ohio.
Dugan,
Most recently,
Ward
involved a challenge to an Ohio state statute authorizing mayors to sit as judges in cases involving ordinance violations and traffic offenses.
Ward,
Mallinckrodt also relies on
United Church of the Medical Center v. Medical Center Commission,
The Seventh Circuit agreed with the Church that this arrangement gave the commission, which served as the judge in
In this case the Commission has a pecuniary interest in the outcome of the reverter proceedings, because if the Commission finds a nonuse or disuse, the property reverts to the Commission, without cost to the Commission even though the property has valuable improvements on it, and in the event of subsequent sale of the property, the proceeds redound to the coffers of the Commission. This is sufficient under the [Gibson] rule to mandate disqualification of the Commission in the reverter proceeding, and require that the revert-er proceedings provisions of the statute be held unconstitutional.
Id. at 699. It summarized, “[i]n simple terms the particular evil is that the [statute] permits the Commission to award valuable property to itself without compensation and without due process.” Id. at 700 (noting that changes in Illinois law “provide[d] the Commission with greater authority to retain and spend the money generated by a sale of property”).
Mallinckrodt argues “[t]he fact that the Board (and the Department) stand to gain a sum that would be enough [to] pay 100 percent of the Board’s total budget for 30 or more years without any other funding is enough, standing alone, to demonstrate financial bias of constitutional dimensions.” Pls.’ Opp’n at 13 (emphasis in original). However, any fees derived from the Order will be deposited in the Hazardous Waste Fund, a fund which, unlike Esso II and United Church, the Board does not control. While a portion of any fees in the Hazardous Waste Fund might then be transferred to the Board Fund, this transfer is capped by law at $325,000 per year. There is no reason to infer that, absent fees derived from the Order, the Board Fund will fail to receive its statutorily allowed annual appropriation. Finally, unlike Esso II and United Church, the Board’s ability to allocate the $325,000 is circumscribed by the statutory requirement that the funds only be expended in accordance with allocations approved by the Legislature.
Ward
is similarly unavailing. Here, there is no allegation about what percentage of the MDEP or the Board’s funds derive from fees associated with the transportation of hazardous waste. More importantly, unlike
Ward,
there is no cause to find that the Board members have executive responsibilities for MDEP or Board finances that might motivate partisanship. The allegations are closer to
Dugan,
where the mayor had no executive duties and “[h]is relation ... to the fund contributed to by his fines as judge, or to the executive or financial policy of the city, [was] remote.”
Dugan,
Under Maine law, the Board’s relation to the funds possibly raised by the Order is remote. While the Board conceivably could have an interest in selecting a remedy with substantial financial upside for the state, the individual Board members have no apparent personal financial interest in such a result, and any institutional interest is minimized by a statutory scheme strictly limiting the Board’s receipt and control over funds possibly derived from the Order. Given these circumstances, the Court cannot infer impermissible bias.
See New York State Dairy Foods, Inc.,
d. Burden of Proof
Mallinckrodt contends that 38 M.R.S.A. § 1365 “places the burden of proof on appeal on Mallinckrodt, creating an unconstitutional presumption that the Order is valid and a bias against the appellant.”
Am. Compl.
¶ 193. However, under the
The Supreme Court has stated that “[ojutside the criminal law area, where special concerns attend, the locus of the burden of persuasion is normally not an issue of federal constitutional moment.”
Lavine v. Milne,
e. Gubernatorial Involvement
Finally, Mallinckrodt contends that the Governor’s interference in the Order issuance process constitutes actual bias, and that this bias extends to the Board because the MDEP and the Board are “inextricably intertwined.” Am. Compl. ¶ 194; Pls.’Opp’n at 14.
Again,
Esso II
is instructive. There, a Puerto Rico Senate Commission report threatened criminal prosecution of EQB officials for failure to timely deal with a gasoline spill.
Esso II,
Mallinckrodt cites a number of cases to support its claim that the Governor’s involvement with the remedy selection process violated due process.
See Pls.’ Opp’n
at 16-20. All but one of these involved allegations of federal executive or legislative entanglement with a federal agency or federally-created body.
See D.C. Fed’n of Civic Ass’ns v. Volpe,
The extent to which these cases apply to allegations of gubernatorial involvement with a state agency in Maine is an open question. Assuming they do, they fail to support the allegations of bias here, predominantly because Mallinckrodt’s allegations insufficiently link the Governor’s alleged involvement in the remedy selection process to the Board or the Board’s adjudicatory process.
See ATX,
Without this link, no inference of bias adheres,
see Koniag,
While “the appearance of bias or pressure may be no less objectionable than the reality,”
D.C. Fed’n of Civic Ass’ns.,
III. CONCLUSION
Mallinckrodt’s various allegations do not allow an inference of “extreme bias completely rendering] a state adjudicator incompetent and inflicting] irreparable harm upon the petitioner.”
Esso II,
The Court GRANTS Defendants’ Motion to Dismiss (Docket # 30).
SO ORDERED.
Notes
. The Plaintiffs are Mallinckrodt LLC and United States Surgical Corporation. According to the MDEP Order, Mallinckrodt Inc. was a New York corporation, which owned and operated a chloralkali manufacturing plant adjacent to the Penobscot River in Orrington, Maine. In December 2006, Mallinckrodt Inc. merged into Mallinckrodt Holdings, Inc, a Nevada corporation, and Mallinckrodt Holdings, Inc. merged into United States Surgical Corporation, a Delaware corporation. United States Surgical Corporation is therefore the legal successor to Mallinckrodt Inc. In March 2007, United States Surgical Corporation and Mallinckrodt LLC entered into a Contribution and Assumption Agreement by which United States Surgical Corporation conveyed certain insurance policies to Mallinckrodt LLC, and Mallinckrodt LLC assumed potential liabilities arising from the plant site. Mallinckrodt LLC is a subsidiary of United States Surgical Corporation, which is a subsidiary of Covidien Ltd., a corporation that is organized and exists under the laws of Bermuda.
Compl.
(Docket # 1) at Attach. 1 at ¶ 1 (Docket # 1-2). For
. In accordance with standard Rule 12(b)(6) practice, the Court recites as true the facts alleged in Mallinckrodt's First Amended Complaint.
See Rodriguez-Ortiz v. Margo Caribe, Inc.,
. Mallinckrodt's First Amended Complaint pleads six counts. Counts One, Two, and Three are due process challenges to the state hearing process provided under the Maine Uncontrolled Hazardous Substances Sites Act. Count Four contends that enforcement of the Order is preempted by federal law. Count Five asserts a due process violation related to the alleged politicization of the state enforcement actions. Count Six seeks a declaratory judgment under Maine and federal law. Am. Compl. ¶¶ 161-213.
. Although the First Circuit has not squarely addressed whether a state proceeding remains "ongoing” despite the state issuance of a stay, courts in this District have concluded in the affirmative.
See Hartford Enters., 529
F.Supp.2d at 106 (concluding that
Younger
abstention applied where the Maine Workers’ Compensation Board voluntarily postponed a hearing on its complaint to await the outcome of a lawsuit in federal court to enjoin the Board proceedings);
Williams v. Me. Supreme Judicial Court Individual Justices,
Mallinckrodt contends that
Williams
"should not be dispositive of the issue” because that case featured "a pair of contradictory opinions” which "point in opposite directions.” Pls
.’ Opp’n
at 7 n. 3. In the first
Williams
opinion, the district court recounts an earlier decision in which it concluded that a stay in a state court proceeding rendered
Younger
abstention inapplicable to the pending federal proceeding.
Williams v. Me. Supreme Judicial Court Individual Justices, 350
F.Supp.2d 136, 140-41 (D.Me.2004). Discussing the prior decision, the court noted that "it was, and remains dubitante as to the propriety, in a technical sense, of this conclusion. It was more the result of generosity toward the Plaintiff’s claims rather than any
The Court disagrees with the Plaintiffs' assessment that this background means that "[a]ny precedential nature of [the Williams ] decisions is greatly limited.” Pl’s Opp'n at 7 n. 3. To the contrary, the Williams decisions are particularly instructive because they expose the evolving thinking of a respected district court judge, who upon careful reflection, concluded that a state stay does not bar application of the Younger abstention doctrine.
. Even if abstention were optional, the Court is unconvinced that concerns of comity are erased by a Board decision to temporarily stay its hearing process in "the interest of resource economy” pending resolution of a federal motion to dismiss. Unlike
Southwest Air Ambulance,
where the state court decided
sua sponte
to stay the state proceeding, the stay here was sought by Mallinckrodt and there is no indication that it was otherwise desired by the Board. Finally, to forge ahead with the federal action would imply an unwarranted view that the state proceedings cannot provide Mallinckrodt adequate and fair adjudication of its claims.
See Rullan,
. Under
Esso I,
to secure federal intervention, Mallinckrodt must demonstrate irreparable harm. This requires that Mallinckrodt show that it is unable to attain interlocutory relief from Maine courts.
Esso I,
. The district court earlier concluded that "the evidence submitted by Esso is not only undisputed, it is overwhelming. The appearance and the probability of actual bias cannot be ignored.... Clearly, the EQB does not measure up to the yardstick of what an impartial adjudicator should be in accordance with Due Process.”
Esso I,
. At oral argument, the Assistant Attorney General represented that, even though two assistant attorneys general report to the same division chief, the Office has maintained a wall between them.
. At oral argument, the attorney for Mallinckrodt confirmed that there is no allegation of unethical conduct by any of the assistant attorneys general.
. Other courts have come to similar conclusions.
See, e.g., Wash. Med. Disciplinary Bd.
v.
Johnston,
. At oral argument, the Defendants represented that under 5 M.R.S.A. § 9055, no one from the MDEP will be permitted to give
. When questioned at oral argument, Mallinckrodt's counsel acknowledged that the technical staff had concurred with Mallinckrodt’s position, and conceded he did not know whether the staff changed their recommendation after Governor Baldacci made his position known.
. At oral argument, Mallinckrodt argued that $250,000 in United States Currency is inapposite because it is a forfeiture case. The Court finds no indication that the First Circuit intended its statement regarding the general burden shifting rule to be so limited.
. Similar to
Esso,
where appointment to the EQB required consent from the Puerto Rico Senate, the Governor appoints members to the Board. 38 M.R.S.A. § 341-C. Thus, the Board members are to some degree beholden to the Governor for their positions.
See Esso II,
. Even if the Commissioner, not the Board, were the final decisionmaker, the timing of the Governor's contact with the Commissioner, well before the initiation of the hearing process, raises another issue.
See DCP Farms,
. At oral argument, Mallinckrodt cited
Kirschner v. Klemons,