United States Court of Appeals

For the First Circuit

No. 23-1351

SARA HALSEY and SUSAN KIRALIS-VERNON,

Plaintiffs, Appellants,

v.

FEDCAP REHABILITATION SERVICES, INC.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Nancy Torresen, U.S. District Judge]

Before

Montecalvo, Lynch, and Rikelman,

Circuit Judges.

Oriana Farnham, with whom William C. Herbert, Frank 

D'Alessandro, Hardy, Wolf & Downing, P.A., and Maine Equal Justice

were on brief, for appellants.

Sarah K. Grossnickle, with whom Martha C. Gaythwaite, John P. 

Giffune, and Verrill Dana LLP were on brief, for appellee.

March 4, 2024
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LYNCH, Circuit Judge. Sara Halsey and Susan 

Kiralis-Vernon, the appellants, were participants in Additional 

Support for People in Retraining and Employment - Temporary 

Assistance for Needy Families (ASPIRE-TANF), a program promulgated 

by the state of Maine. See Me. Stat. tit. 22, § 3781-A(2). The 

purpose of ASPIRE-TANF is to "provide services and support to 

recipients of Temporary Assistance for Needy Families [(TANF), a 

federal program that provides grants to participating states,] and 

to reduce dependence on public assistance to the extent that 

adequate funding is available for that purpose." Id. § 3781-A(3). 

Maine's Department of Health and Human Services (Department) has 

been given the responsibility of administering the ASPIRE-TANF 

program. See id. § 3781-A(2). Under the governing statute, the 

Department may contract with a private agency to deliver services 

to participants in ASPIRE-TANF and is responsible for monitoring 

any such contract agency. See id. § 3782-A(2)-(3). ASPIRE-TANF 

participants have the right to a fair hearing before the Department 

in accordance with the Maine Administrative Procedure Act (MAPA). 

See id. §§ 3762(9)(B), 3788(2); Me. Stat. tit. 5, § 9051(1).

Halsey and Kiralis-Vernon brought this action in the 

U.S. District Court for the District of Maine against Fedcap 

Rehabilitation Services, Inc., (Fedcap) for damages, alleging that 

Fedcap violated its obligations in its role as a contract agency 

hired by the Department to administer ASPIRE-TANF services. Their 
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complaint also alleges that a Fedcap employee verbally assaulted 

Kiralis-Vernon at least in part because of her race, color, or 

national origin. Despite the Maine legislature's provision for an 

administrative review process to resolve disputes under 

ASPIRE-TANF, appellants did not seek to notify the Department of 

their complaints or to pursue their complaints through 

administrative hearings before the Department. The district court 

granted Fedcap's motion to dismiss on the ground that the 

appellants had not first pursued an administrative remedy before 

the Department as required by Maine law. Halsey v. Fedcap 

Rehabilitation Services, Inc., No. 1:22-cv-00119, 2023 WL 2529385, 

at *10 (D. Me. Mar. 15, 2023).

Halsey and Kiralis-Vernon appeal from the district 

court's grant of Fedcap's motion to dismiss. The appellants 

brought the case pursuant to diversity jurisdiction, and the 

parties agree that the issues presented are issues of Maine law. 

Applying Maine law as set forth in Maine statutes, regulations, 

and the decisions of the Maine Law Court, we affirm the district 

court's ruling as it pertains to the appellants' claims that Fedcap 

violated its obligations under the ASPIRE-TANF and other programs. 

We have no need to and do not address whether appellants have a 

viable claim for monetary damages as to those claims. We vacate

the district court's dismissal of Kiralis-Vernon's claim that a 
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Fedcap employee verbally assaulted her and remand for further 

proceedings on that claim. 

I.

A.

TANF is a federal program that provides grants to 

participating states to fund programs that "provide[] assistance 

to needy families with (or expecting) children and provide[] 

parents with job preparation, work, and support services to enable 

them to leave the program and become self-sufficient." 42 U.S.C.

§ 602(a)(1)(A)(i). Maine established the ASPIRE-TANF program to 

"provide services and support to recipients of [TANF] and to reduce 

dependence on public assistance to the extent that adequate funding 

is available for that purpose." Me. Stat. tit. 22, § 3781-A(3). 

ASPIRE-TANF is administered by Maine's Department of Health and 

Human Services. Id. §§ 1-A(2), 3781-A(2). The Department is

charged with "provid[ing] case management services to individuals 

participating in the ASPIRE-TANF program." Id. § 3782-A(1). Under 

the governing statute, an ASPIRE-TANF participant may receive

support services depending on the results of a case manager's 

"initial assessment to determine that individual's education, 

training and employment needs based on available program 

resources, the participant's skills and aptitudes, the 

participant's need for supportive services, local employment 

opportunities," and other factors. Id. § 3788(3). A participant 
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is entitled to receive such services, but only "[t]o the extent 

that sufficient funds, training sites and employment opportunities 

are reasonably available." Id. § 3788(4-A).

"The [D]epartment may contract with public and private 

agencies and individuals to deliver employment, training and other 

services for [ASPIRE-TANF] participants consistent with the 

purposes of the program." Id. § 3782-A(2). The Department is 

required to monitor any such "contract agency at least annually to 

ensure compliance with [governing statutory provisions] to ensure 

compliance with the contracts entered into by the parties and to 

ensure that quality services are provided for program 

participants." Id. § 3782-A(3). The Department is further 

required to "adopt rules in accordance with [MAPA] by which 

satisfactory performance [of a contract agency] is measured." Id. 

Rules governing services under ASPIRE-TANF "apply equally to all 

participating [TANF] recipients, whether those services are 

provided by the [D]epartment or any other agency, organization or 

individual providing TANF program services to participants." Id.

§ 3786.

To receive TANF benefits, a participant must enter with 

a representative of the Department into a "family contract," which 

lists services the participant may receive, as well as the 

requirements with which the recipient must comply to avoid 

sanctions to their benefits. Id. §§ 3763(1)-(1-A), 3788(4-A). 
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When a participant enters into the ASPIRE-TANF program, the family 

contract is amended in accordance with statutory requirements. 

Id. § 3763(1). A participant may request an amendment to their

family contract at any time. Id. § 3788(2).

As an alternative, under certain defined circumstances,

ASPIRE-TANF participants may apply to participate in Maine's 

Parents as Scholars program instead of receiving TANF benefits. 

Id. § 3790(2). Parents as Scholars is a student financial aid 

program whose purpose is to "aid needy students who have dependent 

children and who are matriculating in postsecondary . . . 

education programs." Id. § 3790(1)-(2). Enrollees who are 

accepted into the program "must be provided with a package of 

student aid that includes aid for living expenses equivalent to 

that provided" under TANF. Id. § 3790(1). Similar to ASPIRETANF, an applicant's eligibility for the Parents as Scholars 

program depends upon an initial assessment by a Department case 

manager. Id. § 3790(2). Eligibility must be granted "[t]o the 

extent that program resources and space permit," and only if the 

assessment results in particular findings, such as that "the 

individual has the aptitude to successfully complete the proposed 

postsecondary program." Id. No more than 2,000 individuals may 

be enrolled in the Parents as Scholars program at a given time. 

Id. § 3790(1). "When there are fewer than 2,000 enrollees in the 

[program]," the Department is required to "inform all persons 
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applying for ASPIRE-TANF and all ASPIRE-TANF participants 

reviewing or requesting to amend their education, training or 

employment program under ASPIRE-TANF of the Parents as Scholars 

Program and shall offer them the opportunity to apply for the 

program." Id. § 3788(1-A). 

Notice must be given of an ASPIRE-TANF participant's

"right to request . . . a fair hearing." See id. § 3788(2); see 

also 10-144 Me. Code R. ch. 1, § 1 (providing that Department 

adjudicatory hearings "include proceedings whereby dissatisfied 

applicants, recipients, institutions, or other persons whose legal 

rights, duties, or privileges are at issue can obtain review of 

certain actions or inactions of the [Department] where such legal 

rights, duties or privileges are required by constitutional law or 

statute to be determined after an opportunity for hearing"). Such 

hearings are governed by MAPA. Me. Stat. tit. 22, § 3762(9)(B); 

Me. Stat. tit. 5, § 9051(1).

B.

Because this appeal follows a motion to dismiss, we 

recite the facts as alleged in the complaint. See Medina-Velázquez

v. Hernández-Gregorat, 767 F.3d 103, 105 (1st Cir. 2014).

In 2016, the Department contracted with Fedcap to 

deliver employment, training, and other services to ASPIRE-TANF

program participants. In its capacity as a contract agency, Fedcap 

had the authority to make final determinations as to the content 
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of program participants' family contract amendments, to request 

support service benefits from the Department on participants'

behalf, and to request sanctions from the Department to reduce or 

terminate TANF benefits. 

Subject to the Department's monitoring and other

obligations, Fedcap also assumed responsibility for services which

ASPIRE-TANF participants were to receive under Maine statutory

law, agency rules, common law, and contract provisions. The 

appellants' complaint, which omits material references to certain 

limiting language as to the existence of Fedcap's and the 

Department's obligations, allege that Fedcap was required to:

• inform program participants of available education, 

employment, and training opportunities and support 

services, and how to request and receive them; 

• assess program participants' education and training 

needs for attaining sustainable employment and provide 

necessary and available support services;

• inform program participants about their education, 

training, study, and work requirements under the 

ASPIRE-TANF program;

• provide program participants with an opportunity to 

apply for any education, employment, and training 

opportunity and/or support services available under the 

ASPIRE-TANF program;
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• inform all program participants of Maine's Parents as 

Scholars program, and if there were fewer than 2,000

people enrolled in the program, offer program 

participants the opportunity to apply; 

• assess and document program participants' barriers to 

participation, and offer participants with barriers to 

participation an opportunity for comprehensive 

assessment which could result in referral for 

alternative services, supports, and income benefits;

• engage in the interactive process as necessary for 

evaluating and responding to a request for reasonable 

accommodation;

• offer reasonable alternative participation 

requirements to program participants with disabilities 

or other good cause, and ensure that program 

participants with disabilities were given the right to 

request and receive a reasonable accommodation in order 

to receive substantially the same program benefits as 

persons without disabilities;

• ensure that program participants were not discriminated 

against on the basis of race, sex, or disabling 

condition; 
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• coordinate and authorize support services for program 

participants; and

• use commercially reasonable efforts to secure support 

services from the Department, notify the Department 

daily about support services to be issued on behalf of 

participants, request support services in a timely 

manner, and assist participants with collection of any 

required documentation needed for the Department to 

issue the support. 

C.

The complaint alleges that appellant Sara Halsey began 

participating in the ASPIRE-TANF program in 2016, at which time 

she was in substance use recovery and had a newborn daughter. In 

2017, Halsey requested accommodation from Fedcap in recognition of 

her medical providers' recommendation that she delay seeking 

employment through ASPIRE-TANF because of health barriers related 

to her disabilities, including the need for stability in her 

recovery. The complaint alleges that Fedcap failed to engage in 

the interactive process necessary for evaluating and responding to 

Halsey's request and instead notified Halsey that within one week

she would have to find a childcare provider for her daughter and 

begin applying daily for jobs at the Fedcap office or else receive 

sanctions as to her TANF benefits.
- 11 -

The complaint alleges Halsey informed Fedcap in 2019

that she had enrolled in a full-time graduate certificate program

with the goal of obtaining a bachelor's degree, but that Fedcap 

did not in response inform her about, or give her an opportunity 

to apply to, the Parents as Scholars program or other support 

services. The complaint does not allege any facts as to whether 

at the time she informed Fedcap of the enrollment the Parents as 

Scholars program had fewer than 2,000 participants or any fact as 

to whether she would have been accepted had she been given an 

opportunity to apply. The complaint also does not allege any facts 

as to whether Halsey met the eligibility requirements for either 

the Parents as Scholars program or other support services at the 

time.

The complaint alleges that Fedcap at some unspecified 

later time informed Halsey about available support services, but

it erroneously told her that she would have to work a part-time 

job to obtain support services for childcare while she was in 

school. As a result, Halsey worked a night shift while attending 

school full-time in order to receive childcare services. Halsey 

alleges that this prevented her from getting adequate sleep, caused 

her to spend long periods of time away from her daughter, and 

resulted in severe emotional distress.

Halsey alleges that, when Fedcap did provide her such

support services for childcare, Fedcap failed to timely submit 
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requests to the Department so that her childcare costs could 

promptly be paid. She alleges that this caused her to fear for 

her daughter's wellbeing and her own ability to continue her 

education without reliable childcare. She further alleges that, 

as a result of Fedcap's failure to properly deliver services, she

still has not completed her bachelor's degree.

The complaint alleges that appellant Susan 

Kiralis-Vernon began participating in the ASPIRE-TANF program in 

2016, at which time she had a one-year-old daughter with special 

health needs and an eight-year-old son. In 2016, when

Kiralis-Vernon informed Fedcap that she had enrolled in a 

bachelor's degree program, Fedcap allegedly did not inform her 

about, or give her an opportunity to apply to, the Parents as 

Scholars program or other support services for which she was 

eligible. As a result, the complaint alleges, Kiralis-Vernon 

struggled to afford school supplies and often could not access 

materials she needed from home. The complaint does not allege any 

facts as to whether the Parents as Scholars program had fewer than 

2,000 participants at the relevant time, or any facts as to whether 

Kiralis-Vernon met the eligibility requirements for either the 

Parents as Scholars program or other support services at the time. 

The complaint alleges that, when Fedcap did provide 

Kiralis-Vernon with support services for childcare, Fedcap failed 

to timely submit requests to the Department so that her childcare 
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costs could promptly be paid. This caused her to fear for her 

daughter's wellbeing and her own ability to continue her education 

without reliable childcare. The complaint further alleges that 

Fedcap informed Kiralis-Vernon of the Parents as Scholars program 

one year after she had enrolled in her bachelor's degree program. 

Kiralis-Vernon completed an application for the Parents as 

Scholars program, but Fedcap allegedly failed to submit the 

application to the Department. It is alleged that, as a result of 

Fedcap's failure to deliver services, Kiralis-Vernon still has not 

completed her bachelor's degree.

The complaint alleges that in 2019, Kiralis-Vernon was

in the waiting room of a Fedcap office, and her children in the 

bathroom of said office, when a Fedcap employee verbally assaulted 

her for allegedly missing an appointment. Without provocation, 

the employee requested security and threatened to have the police 

remove Kiralis-Vernon, who is Black, from the premises while her 

children were still in the bathroom. The complaint alleges that 

the circumstantial evidence surrounding this incident demonstrates

that the Fedcap employee's conduct was motivated at least in part 

by Kiralis-Vernon's race, color, or national origin.

II.

In April 2022, Halsey and Kiralis-Vernon filed a

complaint against Fedcap in the U.S. District Court for the 

District of Maine, asserting diversity jurisdiction. The 
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complaint was amended in July 2022. The complaint asserts Maine 

law claims of negligence, breach of contract, breach of fiduciary 

duty, negligent infliction of emotional distress, and intentional 

infliction of emotional distress. The bases of these claims are 

the allegations that Fedcap failed to provide the appellants with 

services it was obligated to supply. Specifically, they include 

allegations that Fedcap failed to engage in the interactive 

process, failed to properly process childcare payment requests, 

failed to submit a program application, and failed to inform or 

misinformed the appellants about the Parents as Scholars program 

and other services. The complaint also includes Kiralis-Vernon's 

allegation of discrimination based on race, color, or national 

origin. Accordingly, the complaint requests actual and punitive 

damages alleged to have arisen from lost earnings, lost earning 

capacity, lost earning opportunities, severe emotional distress, 

and lost enjoyment of life. The complaint further alleges that 

Fedcap engaged in discrimination based on race, sex, and/or 

disability in ways that affected delivery of services, and which 

resulted in the appellants' suffering foreseeable damages arising 

from severe emotional distress. 

In August 2022, Fedcap filed a motion to dismiss for 

failure to state a claim pursuant to Federal Rule of Civil 

Procedure 12(b)(6). On March 15, 2023, the district court granted 

Fedcap's motion on the ground that "court review is not available 
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unless and until the Plaintiffs have tried to pursue a[n 

administrative] remedy before [the Department]." Halsey, 2023 WL 

2529385, at *10.

The appellants timely appealed.

III.

A.

We review the district court's ruling in favor of the

motion to dismiss de novo, "applying the same criteria that 

obtained in the court below." Garita Hotel Ltd. P'ship v. Ponce 

Fed. Bank, F.S.B., 958 F.2d 15, 17 (1st Cir. 1992). In our review, 

we assume the veracity of the complaint's alleged facts, and make 

all reasonable inferences of fact in favor of the plaintiffs,

Muratore v. Darr, 375 F.3d 140, 143 (1st Cir. 2004) (citing Doran

v. Mass. Tpk. Auth., 348 F.3d 315, 318 (1st Cir. 2003)), but "[w]e 

do not credit . . . legal labels or conclusions, or statements 

that merely rehash elements of the cause of action," Lemelson v. 

Bloomberg L.P., 903 F.3d 19, 23 (1st Cir. 2018) (citing Schatz v. 

Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 

2012)). We further are "not bound by the district court's

reasoning but, rather, may affirm an order of dismissal on any 

ground evident from the record." MacDonald v. Town of Eastham, 

745 F.3d 8, 11 (1st Cir. 2014). 

The appellants' complaint is exclusively grounded in the 

law of Maine, so we look to Maine law for the substantive rules of 
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decision. See N. Am. Specialty Ins. Co. v. Lapalme, 258 F.3d 35, 

37 (1st Cir. 2001). A federal court considering state law claims 

does "not create new rules or significantly expand existing rules. 

We leave those tasks to the state courts." Phoung Luc v. Wyndham 

Mgmt. Corp., 496 F.3d 85, 88 (1st Cir. 2007). We are "bound by 

the teachings of [Maine's] highest court," N. Am. Specialty Ins. 

Co., 258 F.3d at 38, and "take care not to extend state law beyond 

its well-marked boundaries," CVS Pharmacy, Inc. v. Lavin, 951 F.3d 

50, 58 (1st Cir. 2020) (quoting Markham v. Fay, 74 F.3d 1347, 1356 

(1st Cir. 1996)). We presume that the appellants, in choosing a 

federal rather than a state forum, were cognizant that it is not 

the role of a federal court under diversity jurisdiction to blaze 

new trails in state law. See Jordan v. Hawker Dayton Corp., 62 

F.3d 29, 32 (1st Cir. 1995). 

B.

The appellants contend that the district court's 

dismissal of their complaint was in error because, they assert, 

they are not required first to utilize the Department's 

administrative review process before bringing suit. 

The district court's holding as articulated appears to 

have been grounded in Maine's exclusivity principle. See Halsey, 

2023 WL 2529385, at *6, *9-10. But that principle applies only 

where there has been a final agency action which can be reviewed 

on appeal in accordance with statutory provisions whose procedures 
- 17 -

have been deemed exclusive. See Fitanides v. Perry, 537 A.2d 1139, 

1140-41 (Me. 1988); see also Paul v. Town of Liberty, 151 A.3d 

924, 929 n.4 (Me. 2016). Because the appellants' claims do not 

yet involve a final agency action, reliance on the principle of 

exclusivity was misplaced.1

Nonetheless, "we are free to affirm an order of dismissal 

on any basis made apparent from the record." See Freeman v. Town 

of Hudson, 714 F.3d 29, 35 (1st Cir. 2013). To address the 

appellants' argument that the dismissal was in error, we turn to

two separate but overlapping Maine doctrines: the principle of 

exhaustion of administrative remedies and the doctrine of primary 

jurisdiction. Both doctrines involve courts "impos[ing] upon 

themselves" limitations on the exercise of jurisdiction. Cushing

v. Smith, 457 A.2d 816, 821 (Me. 1983); see State ex rel. Brennan

v. R.D. Realty Corp., 349 A.2d 201, 207 (Me. 1975) (explaining 

that the doctrine of primary jurisdiction is "a matter of judicial 

policy"). Maine's exhaustion principle "requires a party to 

proceed in the administrative . . . arena until all possible 

administrative remedies are exhausted before initiating action in 

the courts." Cushing, 457 A.2d at 821 (quoting Levesque v. 

Inhabitants of Eliot, 448 A.2d 876, 878 (Me. 1982)). Maine's 

1 The district court found that there has been no

final agency action by the Department at this time, and the 

appellee does not dispute this.
- 18 -

doctrine of primary jurisdiction "holds that as a general rule, 

the courts will not decide an issue which an administrative agency 

with jurisdiction over the matter has not yet considered." 

Levesque, 448 A.2d at 878. These doctrines "are both closely 

allied in basic function and concept." Brennan, 349 A.2d at 206. 

They each "rest[] on the premise that an agency has the primary 

authority to make certain decisions deemed relevant to the 

determination of the controversy." Bryant v. Town of Camden, 132 

A.3d 1183, 1186-87 (Me. 2016) (quoting Brennan, 349 A.2d at 206). 

Maine courts in enforcing these doctrines "recognize the 

advantages of leaving some preliminary determinations to the 

agencies which are particularly competent to handle them." 

Cushing, 457 A.2d at 821. By allowing "administrative agencies to 

correct their own errors, clarify their policies, and reconcile 

conflicts before resorting to judicial relief," Bryant, 132 A.3d

at 1187 (quoting Ne. Occupational Exch., Inc. v. Bureau of Rehab., 

473 A.2d 406, 409 (Me. 1984)), courts "avoid interference with the 

functions of an administrative agency," Cushing, 457 A.2d at 821. 

In particular, these doctrines allow an agency which has 

jurisdiction an opportunity to make findings of fact. See Ne.

Occupational Exch., Inc., 473 A.2d at 409. Such findings of fact 

by the agency "facilitate judicial review, avoid judicial 

usurpation of administrative functions, assure more careful 

administrative consideration, help parties plan their cases for 
- 19 -

rehearings and judicial review, and keep agencies within their 

jurisdiction." Gashgai v. Bd. of Registration in Med., 390 A.2d 

1080, 1085 (Me. 1978); see Frazier v. Fairhaven Sch. Comm., 276 

F.3d 52, 62 (1st Cir. 2002) ("[T]he administrative process, at the 

very least, should facilitate the development of a useful record 

(and, thus, assist in the informed disposition of any subsequent 

litigation).").

The requirement to resort first to the administrative 

review process also allows the agency to "first decide issues 

peculiarly within its expertise before a court may review the 

agency's action." Annable v. Bd. of Env't Prot., 507 A.2d 592, 

594 (Me. 1986). This recognizes that an agency "has developed an 

expertise in resolving the special problems with which it is, by 

law, required to become concerned." Churchill v. S.A.D. No. 49 

Teachers Ass'n, 380 A.2d 186, 190 (Me. 1977) (quoting Brennan, 349 

A.2d at 207). "[T]he '[m]erest prudence suggests that the courts 

ought to have the benefit of the . . . [Agency's] prior expert 

evaluation of controverted facts, before it intervenes in a 

controversy over which the . . . [Agency] has jurisdiction.'" Id.

(alterations in original) (quoting Brennan, 349 A.2d at 207). 

In addition, the doctrines promote judicial economy by 

allowing the agency, once it has found a violation, the opportunity 

to correct its own errors or to reverse any harms caused by its 

actions. See Ne. Occupational Exch., Inc., 473 A.2d at 409. This 
- 20 -

potentially "avoid[s] the necessity of any judicial involvement at 

all if the parties successfully vindicate their claims before the 

agency." Andrade v. Lauer, 729 F.2d 1475, 1484 (D.C. Cir. 1984).2

Maine law recognizes limited exceptions that may relax 

the principle of exhaustion under special circumstances. See Lakes 

Env't Ass'n v. Naples, 486 A.2d 91, 96 (Me. 1984) (citing Ne.

Occupational Exch., Inc., 473 A.3d at 410-11). 

[S]pecial circumstances may require a 

relaxation of the [exhaustion] rule . . . when 

"(1) 'the reviewing body has no power to grant 

the requested relief,' (2) the 'complaint 

alleges persuasive grounds for relief which 

are beyond the jurisdiction of the 

administrative agency to determine,' such that 

completing the process would be futile, or (3) 

'only questions of law are involved' in the 

ultimate determination. 

Bryant, 132 A.3d at 1187 n.1 (emphasis added) (citations omitted) 

(first quoting Stanton v. Trs. of St. Joseph's Coll., 233 A.2d 

718, 724 (Me. 1967); then quoting Lakes Env't Ass'n, 486 A.2d at 

96; then quoting Stanton, 233 A.2d at 724; and then quoting Lakes 

Env't Ass'n, 486 A.2d at 96); see Gross v. Sec'y of State, 562 

A.2d 667, 672 (Me. 1989) (holding that plaintiffs' failure to 

2 This court has recognized the same benefits. See

Barros v. Garland, 31 F.4th 51, 59 (1st Cir. 2022) (holding that 

allowing an agency "to take first crack at legal issues . . . 

afford[s] the parties the full benefit of the agency's expertise 

and allow[s] the agency the first opportunity to correct its own 

bevues" (second alteration in original) (quoting Mazariegos-Paiz

v. Holder, 734 F.3d 57, 63 (1st Cir. 2013))).
- 21 -

pursue administrative review process does not preclude judicial 

relief in part because there "is no provision within the 

administrative review process" that allows plaintiffs to bring 

their claims before the agency). The Maine Law Court has suggested 

that these exceptions may also apply to the doctrine of primary 

jurisdiction in certain circumstances. See Churchill, 380 A.2d at 

190 ("There are exceptions to the doctrine of primary jurisdiction 

excusing the non-exhaustion of administrative remedies . . . .").

C.

The appellants' claims -- excepting Kiralis-Vernon's 

race discrimination claim, which we address independently --

involve many disputed issues of fact and law that the Maine 

legislature has given the Department the responsibility to decide 

in the first instance and which require the Department's discretion 

and expertise to resolve. We conclude that, under Maine's primary 

jurisdiction and exhaustion doctrines, these claims must be heard 

in the first instance by the Department. 

The Maine legislature has vested in the Department 

express authority to ensure that contract agencies comply with 

their contractual and statutory obligations, and the 

responsibility to determine whether contract agencies meet said 

obligations satisfactorily. See Me. Stat. tit. 22, § 3782-A(3). 

The Maine legislature moreover has mandated that disputes as to a 

contract agency's actions shall first be heard and resolved in 
- 22 -

administrative hearings before the Department. See id. § 3788(2); 

Me. Stat. tit. 5, § 9051(1). Such disputes are "clearly committed 

by statute to agency decision-making." Johnston v. Me. Energy 

Recovery Co., Ltd. P'ship, 997 A.2d 741, 747 (Me. 2010). 

Premature judicial review of Fedcap's actions would 

disrupt the Department's ability to carry out these statutory 

duties and would usurp the Department's authority to make factual 

and legal determinations necessary for the resolution of this case. 

See Johnson v. City of Augusta, 902 A.2d 855, 857 n.2 (Me. 2006) 

(stating that the primary jurisdiction doctrine "is applied to 

allow an agency charged with making a decision the opportunity to 

do so before a court disrupts the agency process"); McKart v. 

United States, 395 U.S. 185, 193 (1969) ("A primary purpose [of 

the exhaustion doctrine] is . . . the avoidance of premature 

interruption of the administrative process."); Kristin E. Hickman 

& Richard J. Pierce, Jr., Administrative Law Treatise § 17.2 (6th 

ed. 2019 & Supp. 2023) [hereinafter Hickman & Pierce] ("[A]llowing 

some parties to obtain court review without first exhausting 

administrative remedies may reduce the agency's effectiveness by 

encouraging others to circumvent its procedures and by rendering 

the agency's enforcement efforts more complicated and more 

expensive.").

The Department has been charged with administering the 

ASPIRE-TANF and Parents as Scholars programs, and it is accordingly 
- 23 -

within the Department's authority to make findings about what 

actions Fedcap took with respect to the appellants' participation 

in both programs. See Me. Stat. tit. 22, § 3782-A(3) (providing 

that the Department "shall monitor each contract agency at least 

annually to ensure compliance" with relevant statutory and 

regulatory provisions). This includes findings as to whether and 

at what times Fedcap informed the appellants of the Parents as 

Scholars program and other services, whether such information 

provided was accurate, at what times Fedcap submitted applications

and payment requests for the appellants to receive services under 

ASPIRE-TANF and Parents as Scholars, and whether Fedcap engaged in 

the interactive process for evaluating and responding to a request 

for reasonable accommodation. See Frazier, 276 F.3d at 62 ("[T]he 

administrative process, at the very least, should facilitate the 

development of a useful record . . . .").

The Department also must determine whether Fedcap in 

fact had the various obligations to appellants as claimed and 

whether Fedcap violated those obligations. Any such obligations 

are subject to statutory and discretionary determinations, which 

in turn involve disputed questions of fact and law that are the 

responsibility of the Department to resolve. See McGee v. United 

States, 402 U.S. 479, 490 (1971) ("When a claim . . . depends 

ultimately on the careful gathering and analysis of relevant facts, 

the interest in full airing of the facts within the administrative 
- 24 -

system is prominent . . . ."). Such questions include whether 

Fedcap had obligations to inform Halsey and Kiralis-Vernon of the 

Parents as Scholars program and other services, whether Fedcap had 

obligations to provide them with opportunities to apply for said 

services, whether Fedcap was required to submit program 

applications and payment requests to the Department, whether any 

such applications or requests would have been accepted at the time, 

what benefits the appellants would have been eligible to receive 

had their applications been successful, whether Fedcap was 

required to engage in the interactive process, and what information 

Fedcap was required to provide to the appellants about the services 

for which they were eligible.

In particular, the extent of Fedcap's obligations under 

the Parents as Scholars program depends upon numerous 

determinations that require the Department to engage both in fact 

finding and legal and discretionary determinations. See Bar Harbor 

Banking & Tr. Co. v. Alexander, 411 A.2d 74, 77 (Me. 1980) 

(recognizing that the primary jurisdiction doctrine "express[es] 

a judicial policy of 'not [deciding] an issue concerning which an 

administrative agency has decision capacity until after the agency 

has considered the issue'" (second alteration in original) 

(quoting Brennan, 349 A.2d at 207)); see also Weinberger v. Bentex 

Pharms., Inc., 412 U.S. 645, 654 (1973) ("[I]n cases . . . 

requiring the exercise of administrative discretion, agencies 
- 25 -

created by Congress for regulating the subject matter should not 

be passed over." (first alteration in original) (quoting Far E. 

Conf. v. United States, 342 U.S. 570, 574-75 (1952))). As the 

appellants admit, Fedcap's obligations under the Parents as 

Scholars program could be initially triggered only on a finding as 

to whether there were at the relevant time 2,000 people enrolled 

in that program. See Me. Stat. tit. 22, §§ 3762(12), 3790(1). 

Indeed, under the facts alleged in the complaint, it is possible 

that Fedcap promptly informed the appellants of the Parents as 

Scholars program once there were fewer than 2,000 enrollees.3 The 

Department is responsible in the first instance for determining 

whether the timing of Fedcap's actions to inform the appellants of 

the program violated statutory and regulatory requirements.

Even if the Parents as Scholars program could accept 

applications during the relevant time, the eligibility of the 

appellants for the program, and hence whether the appellants could 

have received services under the program, depends on further 

factual determinations that require the Department's expertise to 

resolve. The Department must resolve these factual determinations 

in the first instance before a court can review the appellants' 

3 The complaint alleges that Fedcap informed 

Kiralis-Vernon of the Parents as Scholars program a year into her 

bachelor's degree program. The complaint also alleges that Halsey 

"was eventually informed about available support services," but 

does not make clear whether this included information about the 

Parents as Scholars program. 
- 26 -

claims that Fedcap failed to inform them of the Parents as Scholars 

program and that Fedcap failed to submit Kiralis-Vernon's Parents 

as Scholars application to the Department. These factual questions 

extend well beyond whether 2,000 individuals were enrolled in the 

Parents as Scholars program. An ASPIRE-TANF participant is not 

inherently eligible to be enrolled in the Parents as Scholars 

program, but instead must satisfy statutory criteria that are 

within the discretion of the Department to determine. For example, 

the statute governing the program mandates that applications for 

the program be granted only "[t]o the extent that program resources 

and space permit." Me. Stat. tit. 22, § 3790(2). The statute 

additionally mandates that an individual may be enrolled in the 

program only after the Department has made various findings on the 

basis of an assessment of that individual, including:

A. That the individual does not possess the 

necessary skills to obtain employment that 

will enable that individual to support a 

family at 85% of the median family income in 

the State for a family of the same size;

B. That, considering potential employment 

opportunities and local labor market 

conditions, the postsecondary education 

sought by the individual will significantly 

improve the ability of the family to be 

self-supporting;

C. That the individual has the aptitude to 

successfully complete the proposed 

postsecondary program; and

D. That enrollment is for the pursuit of any 

degree or certification if the occupation has 

at least an average job outlook as identified 

by the Center for Workforce Research and 

Information within the Department of Labor. 
- 27 -

For occupations with a lower than average job 

outlook, educational plans require approval of 

the commissioner or the commissioner's 

designee.

Id. Maine law tasks the Department with carrying out the 

assessment necessary for resolving these factual questions. See

id.; see also id. § 3788(3) (providing that the initial assessment 

shall be conducted by a Department case manager). 

The appellants' claims related to ASPIRE-TANF services -

- including that Fedcap misinformed them about requirements to 

receive services, failed to submit applications or payment 

requests, and failed to engage in the interactive process -- also 

depend upon determinations that the Maine legislature has vested 

the Department with making. The statute governing the ASPIRE-TANF 

program stipulates that the Department shall provide support 

services to a participant based on "available program resources, 

the participant's skills and aptitudes, the participant's need for 

supportive services, local employment opportunities," and other 

factors. See Me. Stat. tit. 22, § 3788(3), (4-A). The statute 

also assigns the Department the responsibility to first conduct 

the statutorily prescribed comprehensive assessments to determine 

whether the appellants were to be provided with "alternative 

services, supports and income benefits" on account of Halsey's 

disabilities and the health needs of Kiralis-Vernon's child. See

id. § 3788(3-A). 
- 28 -

The appellants' claims -- excepting the race 

discrimination claim -- cannot be adjudicated without determining 

first whether the appellants were eligible for services under 

ASPIRE-TANF and Parents as Scholars during the relevant time, and

if so, for which services the appellants were eligible. Assessment 

of the applicants' eligibility falls squarely within the 

Department's regulatory authority, and so must be addressed by the 

Department in the first instance, and the case should not proceed 

in court without the Department first exercising its discretion 

over this matter. See Town of Shapleigh v. Shikles, 427 A.2d 

460, 466, 466 n.3 (Me. 1981) (holding that superior court did not 

abuse its discretion in denying plaintiff injunctive relief 

because, given "experience and expertise of zoning board 

officials," "where zoning problems involve matters of fact, their 

initial determination should be made at the administrative level, 

rather than by the judiciary"); see also McKart, 395 U.S. at 194 

("[S]ince agency decisions are frequently of a discretionary 

nature or frequently require expertise, the agency should be given 

the first chance to exercise that discretion or to apply that 

expertise."); Hickman & Pierce § 17.2 ("[J]udicial review of 

agency action can be hindered by failure to exhaust administrative 

remedies because the agency may not have an adequate opportunity 

to assemble and to analyze relevant facts and to explain the basis 

for its action.").
- 29 -

That the Department first hear these matters would serve 

judicial economy by narrowing the issues available for review. 

The Department has been assigned the responsibility to determine 

whether Fedcap engaged in any violation of its obligations to 

either appellant. See Munsell v. Dep't of Agric., 509 F.3d 572, 

591 (D.C. Cir. 2007) ("Bringing such claims to the agency in the 

first instance allows the agency to clarify its position about the 

conduct of the accused official."). If Fedcap violated its duties, 

the Department is given the first responsibility to correct any 

errors in its oversight of Fedcap and to determine what remedies 

are available through the administrative review process, if any. 

See Ne. Occupational Exch., Inc., 473 A.2d at 409. The Department 

first "must be given an opportunity to act in its regulatory role" 

before the appellants may seek redress in the courts. Marshall v. 

Town of Dexter, 125 A.3d 1141, 1148 (Me. 2015); see Anversa v. 

Partners Healthcare Sys., Inc., 835 F.3d 167, 178 (1st Cir. 2016) 

(holding that requiring administrative review in first instance is 

beneficial for judicial review in part because outcome of 

administrative review process "may reconfigure the contours of the 

controversy by the time it is ripe for district court 

consideration").

D.

Under both the governing statute and Department 

regulations, it is clear that the appellants' claims -- excepting 
- 30 -

again Kiralis-Vernon's race discrimination claim -- may be 

addressed in administrative hearings before the Department. The 

appellants argue otherwise and maintain that an ASPIRE-TANF 

participant may request a hearing only to appeal an agency 

decision. The appellants contend that, because Fedcap's various 

alleged unlawful actions cannot be characterized as agency 

decisions, the administrative review process does not provide an 

opportunity for the Department to address any of their claims, and 

so exhaustion requirements do not apply. 

This argument is refuted by the governing statute and 

Department regulations. The Maine statute does not impose any 

express limitation on a program participant's right to request a 

fair hearing before the Department. See Me. Stat. tit. 22, 

§ 3788(2) (stating that a participant in the ASPIRE-TANF program 

must be informed of their "right to request a conciliation meeting 

and a fair hearing" when they receive written copies of family 

contract amendments).

Likewise, Department regulations provide for 

administrative review of the appellants' claims. Under the 

regulations governing TANF benefits and the Parents as Scholars 

program, an individual who is signed onto a family contract with 

the Department "has an opportunity for a fair hearing when [he or 

she] disagrees with actions affecting their benefits." 10-144 Me. 

Code R. ch. 331, Ch. VI. This same regulatory chapter includes 
- 31 -

language indicating that "benefits" refers broadly to TANF 

payments, Parents as Scholars support, and ASPIRE-TANF support 

services. See id.; see also Morales v. Sociedad Española de 

Auxilio Mutuo y Beneficencia, 524 F.3d 54, 57 (1st Cir. 2008) 

("Determining a regulation's meaning requires application of the 

same principles that imbue exercises in statutory construction."); 

State v. Dubois Livestock, Inc., 174 A.3d 308, 311 (Me. 2017) 

(holding that, when interpreting statutory language, "we examine 

the entirety of the statute, giving due weight to design, 

structure, and purpose as well as to aggregate language" (quoting 

Dickau v. Vt. Mut. Ins. Co., 107 A.3d 621, 628 (Me. 2014))). The 

language of this regulatory provision plainly encompasses Fedcap's 

alleged misstatements to the appellants about the requirements 

governing ASPIRE-TANF participation, as such misstatements would 

affect appellants' receipt of benefits.

The administrative review process established by 

Department regulations additionally covers Fedcap's various 

alleged failures to comply with its obligations, including its 

failure to inform the appellants about the Parents as Scholars 

program and ASPIRE-TANF services, its failure to respond to the 

appellants' requests for reasonable accommodations, and its 

failure to timely submit applications to the Department.4 

4 The regulations also would allow the appellants to 

request a hearing before the Department on the Department's failure 
- 32 -

Regulations governing the Emergency Assistance program, which are 

found in the same regulatory manual as the regulations governing 

TANF and Parents as Scholars, state that any "person aggrieved by 

a decision, act, failure to act or delay in action concerning [an 

emergency assistance application] shall have the right to a 

[hearing]." 10-144 Me. Code R. ch. 331, Ch. VIII (emphasis added). 

The regulations go on to state that "[t]he same policy and 

procedure used in the TANF and [Parents as Scholars] programs 

applies to Emergency Assistance with regard to hearings." Id. As 

we interpret the regulations to make them harmonious, the 

opportunity for a fair hearing extends, were there any question 

about it, to failures to act.5 See McCuin v. Sec'y of Health & 

Hum. Servs., 817 F.2d 161, 168 (1st Cir. 1987) ("In interpreting 

. . . regulations, courts must try to give them a harmonious, 

comprehensive meaning, giving effect, when possible, to all 

provisions.").6

to ensure that Fedcap complied with its obligations. See Me. Stat. 

tit. 22, § 3782-A(3). 

5 In this, Maine law parallels federal law. See

Goethel v. United States Dep't of Com., 854 F.3d 106, 116 (1st 

Cir. 2017) ("Agency 'action' for purposes of administrative law 

generally 'includes the whole or a part of an agency rule, order, 

license, sanction, relief, or the equivalent or denial thereof, or 

failure to act.'" (quoting 5 U.S.C. § 551(13))).

6 As the district court properly concluded, the 

Department may waive the thirty-day time limit on requesting a 

hearing. See Halsey, 2023 WL 2529385, at *8, *8 n.7; 10-144 Me. 

Code R. ch. 331, Ch. VI. Given that the complaint as read most 

favorably to the appellants indicates that Halsey and Kiralis-
- 33 -

E.

We reject the appellants' argument that, even if these 

claims first could be addressed by the Department, exhaustion and 

primary jurisdiction requirements do not apply because the 

Department is unable to grant monetary damages as to these claims.7 

Even assuming arguendo in the appellants' favor that the alleged

violations would as a statutory matter give rise to monetary 

relief, and that the appellants fall within the category of those 

eligible for such relief, their claims are still subject to 

Vernon could not have known about any action or inaction by Fedcap 

as to its failure to inform them about the Parents as Scholars 

program, it is far from clear that this time limit applies. If, 

however, the Department nonetheless applies this time limit and 

finds their claims as to Fedcap's failure to inform about the 

Parents as Scholars program to be untimely, then we note that 

nothing in this opinion would prevent the appellants from arguing 

their claims are timely. See Maine Rule of Civil Procedure 15(c) 

(providing when "[a]n amendment of a pleading relates back to the 

date of the original pleading"); Frame v. Millinocket Reg'l Hosp., 

82 A.3d 137, 142-43 (Me. 2013) (describing that Maine Rule of Civil 

Procedure 15(c) allows for "[a]n amended pleading [to] relate[] 

back to the date of the original pleading where the claim asserted 

in the amended pleading 'arose out of the conduct, transaction, or 

occurrence set forth or attempted to be set forth in the original 

pleading'"); AFSCME Council 93 v. Me. Labor Rels. Bd., 678 A.2d 

591, 592 (Me. 1996) (holding that "an amended complaint may . . . 

relate back to the filing date of the original complaint" even 

when "the original complaint must be dismissed"); Fed. R. Civ. P.

15(c) ("Relation Back of Amendments").

7 The district court found that the Department could 

compensate the appellants through the provision of services 

retroactive to the time when the appellants first became eligible 

for benefits. Halsey, 2023 WL 2529385, at *8. The appellants 

contest this. We do not address this issue.
- 34 -

exhaustion requirements. While an agency's inability to grant the 

precise relief sought is one factor that weighs in favor of 

judicial review in the first instance, see Churchill, 380 A.2d at 

190, we conclude that this factor alone is not sufficient in this 

case to establish that exhaustion and primary jurisdiction

requirements do not apply.8

We first address the appellants' argument as it pertains 

to their claims that Fedcap failed to engage in the interactive 

process necessary to evaluate Halsey's request for accommodation, 

failed to timely submit Halsey's and Kiralis-Vernon's requests for 

childcare payments to the Department, and failed to submit 

Kiralis-Vernon's Parents as Scholars application to the 

Department. The Maine Law Court's decision in Marshall requires 

us to hold that, even assuming the Department's inability to 

provide monetary relief, that does not excuse the appellants from 

exhaustion and primary jurisdiction requirements on these claims. 

8 The district court noted that procedures provided 

in Maine Rule of Civil Procedure 80C would allow the appellants to 

join an independent claim seeking damages to a claim seeking review 

of Department actions. See Halsey, 2023 WL 2529385, at *9; see 

also Fleming v. Comm'r, Dep't of Corr., 795 A.2d 692, 695 (Me. 

2002) ("[Me. R. Civ. P.] 80C anticipates that a plaintiff (or 

petitioner) may add an independent claim for damages . . . ."). 

We note that these Rule 80C procedures, which govern judicial 

review of final agency actions, are not relevant to the exhaustion 

analysis. Under the principle of exhaustion, the court inquires 

whether "a remedy before an administrative agency" is available, 

and not whether an adequate remedy would be made available upon 

judicial review of agency action. See Stanton, 233 A.2d at 723-24.
- 35 -

Among other reasons, the Department could have prevented or limited

damages associated with these claims had the appellants brought 

these claims to the Department's attention at an earlier time.

In Marshall, the plaintiff filed a complaint in superior 

court against a town and its code enforcement officer, alleging 

constitutional violations and seeking relief in the form of a 

permanent injunction and damages. See 125 A.3d at 1145. The 

plaintiff alleged in particular that the town's code enforcement 

officer had improperly issued a notice of violation that prohibited 

repair and maintenance work on his property, which had "potentially 

expos[ed] [the plaintiff's property] to accelerated deterioration 

due to exposure to the elements." See id. at 1144-45 (first 

alteration in original). The superior court granted the town's 

motion to dismiss on the ground that the plaintiff had failed to 

first seek review of the officer's actions through the town's Board 

of Appeals. See id. at 1145, 1149. The Law Court affirmed, 

holding that resort in the first instance to the administrative 

process was required because the Board of Appeals was vested with 

the authority to address each of the plaintiff's claims. See id.

at 1147-48. The court rejected the plaintiff's argument that, 

because the Board could not grant the monetary relief sought, he 

did not have to pursue an administrative remedy. See id. at 1147. 

Although the Board could not provide the precise relief sought by 

the plaintiff, the court reasoned that, had the plaintiff used the 
- 36 -

available administrative process when he had received the notice 

of violation, that "process could have resulted in a prompt 

decision on the [officer's actions] and could have limited or 

prevented any monetary damages while also eliminating the need for 

a judicially created injunction." Id. at 1148. 

In light of Marshall, the unavailability of monetary 

relief does not excuse exhaustion requirements where the alleged 

damages resulted at least in part from the appellants' "cho[ice] 

to bypass [the administrative] process and proceed directly to 

court." See id. at 1148. Here, the Department could have

prevented or limited any monetary damages had the appellants

requested an administrative hearing following Fedcap's failure to 

engage in the interactive process, request childcare payments, or

submit Kiralis-Vernon's Parents as Scholars application.9 Such 

hearings would have afforded the Department an opportunity to 

determine whether Fedcap was providing "quality services . . . for 

program participants" in accordance with its legal obligations.

See Me. Stat. tit. 22, § 3782-A(3). Moreover, the appellants at 

these hearings could have requested that the Department order

Fedcap to comply with any unfulfilled obligations. See 10-144 Me. 

9 Indeed, while the appellants argue that, "as a 

practical matter, [they] could not have requested an 

administrative hearing to address Fedcap's failure to provide 

necessary information about the ASPIRE program, because [they] did 

not learn about that information," they do not make an analogous 

argument about these other claims. 
- 37 -

Code R. ch. 331, Ch. VI (stating that following a hearing request 

the Department must provide the ASPIRE-TANF recipient with 

adequate opportunity to "advance any arguments without undue 

interference"). 

The appellants argue they could not have been aware, and 

so could not have requested a hearing before the Department to 

address, that Fedcap had failed to inform them of the Parents as 

Scholars program and other support services or that Fedcap had 

misinformed Halsey about the requirements to remain eligible for 

such services, assuming they were eligible. It is true that the 

Maine Law Court has indicated that, at least in some circumstances, 

an agency's inability to "grant the requested relief" may warrant 

an exception to the exhaustion principle. See Lakes Env't Ass'n, 

486 A.2d at 96; Gross, 562 A.2d at 672 (holding that exhaustion 

principle does not apply in part because "the remedy provided by 

the review procedure" is not what is "requested by the plaintiffs 

in their amended complaint"). 

Nonetheless, we conclude that the doctrine of primary 

jurisdiction, apart from the exhaustion principle, requires that 

the appellants seek administrative review of these

failure-to-inform claims in the first instance. The Law Court has 

made clear that the exhaustion principle is not coterminous with 

the primary jurisdiction doctrine. See Brennan, 349 A.2d at 206 

("We recognize that the 'doctrine of primary jurisdiction' is 
- 38 -

somewhat different from the 'doctrine of exhaustion of 

administrative remedies' . . . ."); Town of Levant v. Seymour, 855 

A.2d 1159, 1164 (Me. 2004) (addressing the plaintiff's arguments 

under the doctrine of primary jurisdiction after determining that 

the plaintiff's arguments under the principle of exhaustion are 

waived). If the primary jurisdiction doctrine were to apply only 

when an adequate administrative remedy is available, that doctrine

would be rendered redundant with the exhaustion principle. 

Further, while one of the underlying purposes of the exhaustion 

principle -- to protect judicial economy by "avoiding the necessity 

of any judicial involvement," Andrade, 729 F.2d at 1484 -- is 

potentially undermined when the administrative review process 

cannot provide the relief the plaintiff seeks, this is less so for 

the primary jurisdiction doctrine, which is primarily motivated by 

a need for the agency's expertise to resolve the issues involved, 

see Brennan, 349 A.2d at 207. Moreover, the Law Court has used 

language indicating that application of exceptions under the 

primary jurisdiction doctrine is discretionary, and so is not 

subject to a rigid formula. See Town of Levant, 855 A.2d at 1164

(holding that, because the administrative board does not have 

exclusive jurisdiction over the matter and because the board, 

unlike the district court, "does not have . . . the ability to 

issue an injunction and impose a penalty[,] . . . . the district 

court was not required, on the grounds of primary jurisdiction, to 
- 39 -

wait until the administrative appeal was finally concluded before 

it could proceed with the enforcement action" (emphasis added)).

There is no Maine caselaw stating that the 

unavailability of sought-after monetary relief, in the absence of 

other circumstances, is a sufficient reason to exempt a plaintiff 

from primary jurisdiction requirements. The Law Court has stated, 

in the context of a discussion about the primary jurisdiction 

doctrine, that "where the administrative agency is not empowered 

to grant the relief sought and it would be futile to complete the 

administrative appeal process, such are special circumstances 

dispensing with the exhaustion of the administrative remedy prior 

to turning to the courts for relief." Churchill, 380 A.2d at 190 

(emphasis added). The court has not held that the unavailability 

of the sought-after relief alone can constitute such a special 

circumstance. See id.; cf. Stanton, 233 A.2d at 724-25 (noting 

that the relevant law was beyond the agency's power and any relief 

the agency could provide would have been insufficient); Ne. 

Occupational Exch., Inc., 473 A.2d at 411 ("Judicial review may be 

undertaken despite a failure to exhaust all administrative 

remedies where the questions involved are ones only of law, or 

where the administrative agency is not empowered to grant the 

relief requested and, therefore, completion of the appeal process 

would be futile." (internal citations omitted)).
- 40 -

The facts here counsel against allowing the appellants' 

failure-to-inform claims to move forward in federal court. As we

have discussed, these claims depend upon many determinations 

committed by law to the Department and that require the 

Department's expertise to resolve. See Brennan, 349 A.2d at 207 

(holding that agency "expertise [is] the controlling 

consideration" in "rationaliz[ing] the application of" the primary 

jurisdiction doctrine). The appellants allege that Fedcap not 

only failed to inform the appellants of the Parents as Scholars 

program, but also of "all other support services for which [they 

were] eligible while pursuing education." Determination of such 

eligibility requires that the Department conduct assessments of 

the appellants and their particular circumstances. See Me. Stat. 

tit. 22, § 3788(3). Further, even if the Department were to make 

a determination that Fedcap had violated its obligations to inform 

the appellants of the Parents as Scholars program or any other 

services, that would then lead to other questions of fact and law. 

These would include the extent to which those violations caused 

the appellants to miss out on benefits and services under the 

ASPIRE-TANF and Parents as Scholars programs. These 

determinations necessarily depend upon factual and legal findings 

yet to be made which are assigned to the Department, including 

whether the appellants would have been eligible for enrollment in 

the Parents as Scholars program had they successfully submitted 
- 41 -

applications. See id. § 3790(2); Bryant, 132 A.3d at 1186 (holding 

that the doctrine of primary jurisdiction requires courts to "avoid 

ruling, on appeal, on matters committed by law to the 

decision-making authority of an administrative agency before the 

administrative agency has first had an opportunity to review and 

decide the facts on the merits of the matter at issue." (quoting 

Christian Fellowship & Renewal Ctr. v. Town of Limington, 896 A.2d 

287, 298 (Me. 2006))). 

We conclude that the appellants are not excused from the 

requirement to first seek administrative review of their claims 

that Fedcap failed to properly inform them about the Parents as 

Scholars program and other services, failed to engage in the 

interactive process, failed to submit Kiralis-Vernon's Parents as 

Scholars application, and failed to process childcare payment 

requests.

F.

This leaves the allegation that Kiralis-Vernon was 

verbally assaulted by a Fedcap employee on the basis of her race, 

color, or national origin. Kiralis-Vernon alleges that she 

experienced severe emotional distress as a result of the alleged 

verbal assault and seeks compensatory and punitive damages for 

negligent and intentional infliction of emotional distress. 

We conclude that neither Maine's principle of exhaustion

nor its doctrine of primary jurisdiction applies to this
- 42 -

independent race discrimination claim. Neither the statutes nor 

the regulations grant the Department jurisdiction or authority 

over such claim, nor does the Department have special expertise. 

The law governing the race discrimination claim is outside of the 

Department's expertise and knowledge, and this claim does not 

involve the same subordinate statutory legal questions as the other 

claims included in the amended complaint the dismissal of which we 

have affirmed. Unlike the other claims, the race discrimination

claim differs in kind from the issues of whether the appellants 

were eligible for ASPIRE-TANF or other services, the extent to 

which the appellants received such services from Fedcap, and

Fedcap's obligations under the ASPIRE-TANF program.10

10 Our conclusion is consonant with application of the 

primary jurisdiction doctrine in a federal context. In Tassy v. 

Brunswick Hosp. Ctr., Inc., a medical doctor's privileges were 

revoked by a hospital following sexual harassment allegations. 

See 296 F.3d 65, 65-66 (2d Cir. 2002). The doctor "denie[d] the 

sexual harassment allegations and assert[ed] that [he was] 

discriminated against . . . on the basis of his race and national 

origin." Id. at 66. The court held that the doctor was not 

required under the primary jurisdiction doctrine to first bring 

his claim before the New York Public Health Council, an 

administrative body whose "primary function . . . is to determine 

whether there is a medical justification for the withdrawal of [a] 

doctor's privileges." See id. at 66, 69 (alteration in original) 

(quoting Johnson v. Nyack Hosp., 964 F.2d 116, 121 (2d Cir. 1992)). 

The court reasoned that "[t]he primary factual issue is whether 

[the doctor] committed the alleged sexual harassment, the 

resolution of which does not require the [Public Health Council's]

expertise." Id. at 70. The court noted that the Council "has no 

expertise in determining whether a doctor committed sexual 

harassment or other acts of non-medical misconduct." Id. The 

court further noted that Tassy could be distinguished from a 

previous decision in which the court had held that the Council did 
- 43 -

We reject the appellee's several arguments to the 

contrary. The appellee contends that the race discrimination claim

falls under the Department's authority to hear an appeal of any 

action which deprived program participants of services. However, 

although the amended complaint includes language alleging that the 

Fedcap employee's verbal assault affected the delivery of 

services, the brunt of the claim is that it was an act of 

discrimination, forbidden under the law, which resulted in severe 

emotional distress. The appellee does not explain under what 

authority the Department could determine whether the Fedcap 

employee's alleged conduct, if true, was motivated by race and 

caused the infliction of compensable emotional distress. See Nader

v. Allegheny Airlines, Inc., 426 U.S. 290, 305-06 (1976) (holding 

that primary jurisdiction doctrine does not apply because "[t]he 

standards to be applied in [the] action . . . are within the 

conventional competence of the courts, and the judgment of a 

technically expert body is not likely to be helpful in the 

application of these standards to the facts of the case").

The appellee also argues that it has a defense which 

could fall within the Department's expertise: that the alleged 

have primary jurisdiction over a claim involving the revocation of 

medical privileges. See id. Revocation in that case had been on 

the basis of unsatisfactory surgical performance, and so "[t]he 

medical expertise of the [Council]" was required to determine 

whether "defendants had a proper medical reason to terminate [the 

doctor's] privileges." Id. (quoting Johnson, 964 F.2d at 122).
- 44 -

verbal assault involved an accusation that Kiralis-Vernon missed 

an appointment, which is a sanctionable act. See 10-144 Me. Code 

R. ch. 607, § 4(V)(B)(2) (stating that "[f]ailure or refusal to 

keep additional appointments required by ASPIRE-TANF" constitutes 

a "sanctionable act"). But even if Kiralis-Vernon missed an 

appointment, that would not address the issue of whether racial 

bias motivated how she was treated. If the appellee means by its 

argument that it could engage in racial discrimination in 

sanctioning a recipient late for a meeting, we see no basis for 

that, nor does the appellee cite any law in support.

We also reject the appellee's argument that, even if the 

Department could not address the race discrimination claim in a 

hearing, an informal process was available through which the 

appellants "might have resolved their issues without resort to a 

full hearing, and thus avoided the emotional distress and monetary 

damages they allege here." The appellee refers in particular to

a regulatory provision stating that 

[ASPIRE-TANF] [r]ecipients who are 

dissatisfied with any action will upon request 

be given the opportunity to discuss their case 

with the immediate supervisor. The assistance 

group will be advised that this meeting with 

the supervisor is optional and will not delay 

or replace the fair hearing. The basis for 

this meeting will be a review of the case 

situation to determine any available 

resolution of the problem.
- 45 -

10-144 Me. Code R. ch. 331, Ch. VI. The district court held that 

"[t]his informal procedure would allow [the Department] to hear 

and address claims of abusive and discriminatory treatment, such 

as those made by . . . Kiralis-Vernon." Halsey, 2023 WL 2529385, 

at *8 n.6. Under Maine law, even were this accurate, we do not 

think the Law Court would require the claim of racial 

discrimination, different in kind, to fall within the authority 

and jurisdiction of the Department.11

IV.

We vacate the dismissal of the appellants' verbal 

assault claim and remand for further proceedings consistent with 

this opinion. We affirm the dismissal of the appellants' other 

claims. No costs are awarded.

11 We do not address the appellee's alternative 

arguments that the appellants' claims should be dismissed under 

Rule 12(b)(6). These arguments were not addressed by the district 

court, and so they may be addressed on remand.