NICHOLAS v. CAMUSO

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
JB NICHOLAS, 	)
)
Plaintiffs, 	)
)
v. 	) 	1:23-cv-00015-JAW
)
JUDY A. CAMUSO, Commissioner, Maine 	)
Department of Inland Fisheries & Wildlife, 	)
)
Defendant. 	)
ORDER ON MOTION TO DISMISS
A plaintiff denied a license to work as a wilderness fly fishing guide in Maine
because of a past felony conviction sues to enjoin the state from enforcing its statute
that requires guides to be licensed and/or to have the licensing regulations declared
unconstitutional. 	The state moves to dismiss his complaint, arguing—among other
things—that 	the 	court 	should 	abstain 	from 	hearing 	the 	case 	because 	the
administrative process guarantees the plaintiff review in the state system and his
parallel suit in this court is an improper attempt to circumvent that process. To the
extent that the plaintiff pleads as-applied challenges to the denial of his application,
the Court concludes that a Burford abstention is appropriate and dismisses the suit
without prejudice to allow the state process to run its course, and to the extent that
the plaintiff brings facial constitutional challenges to the licensing regime, the Court
dismisses them on the merits.
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I. 	BACKGROUND
On January 9, 2023, JB Nicholas, proceeding pro se, filed a complaint against
Judy Camuso, Commissioner of the Maine Department of Inland Fisheries & Wildlife
(the Commissioner), alleging that the state’s guide licensing regime violated his
rights guaranteed by the First and Fourteenth Amendments and the Constitution’s
Privileges and Immunities Clause. 	Compl. (ECF No. 1). 	That same day, he filed a
motion for a preliminary injunction to enjoin the Commissioner from enforcing the
statute against him. 	Mot. for Prelim. Inj. (ECF No. 4). 	On April 10, 2023, the
Commissioner filed a motion to dismiss the complaint, [Def.’s] Mot. to Dismiss (ECF
No. 10) (Def.’s Mot.), and on April 11, 2023, she filed a response to the motion for a
preliminary injunction. 	Def.’s Opp’n to Pl.’s Mot. for Prelim. Inj. (ECF No. 11). 	On
April 13, 2023, Mr. Nicholas filed a response to the motion to dismiss. Pl.’s Mem. of
Law in Opp’n to Def.’s Mot. to Dismiss & in Further Supp. of Pl.’s Mot. for a Prelim.
Inj. (ECF No. 12) (Pl.’s Opp’n). Finally, on April 27, 2023, the Commissioner filed a
reply in support of her motion to dismiss. Def.’s Reply to Pl.’s Opp’n to Def.’s Mot. to
Dismiss (ECF No. 16) (Def.’s Reply).
II. 	FACTS1
A. 	Maine’s Guide Licensing Regulations
Maine 	law 	defines 	a 	“guide” 	as 	“a 	person 	who 	receives 	any 	form 	of
remuneration for that person’s services in accompanying or assisting a person in the
1 	Consistent with Federal Rule of Civil Procedure 12(b)(6), in describing the facts, the Court has
relied upon the allegations in the Plaintiff’s Complaint. Foley v. Wells Fargo Bank, N.A., 772 F.3d 63,
68 (1st Cir. 2014); Medina-Velázquez v. Hernández-Gregorat, 767 F.3d 103, 108 (1st Cir. 2014) (“We
examine whether the operative complaint states a claim for which relief can be granted when we
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fields or forests or on the waters or ice within the jurisdiction of the State while
hunting, fishing, trapping, boating, snowmobiling, using an all-terrain vehicle or
camping at a primitive camping area.” 	12 M.R.S. § 10001(28). 	Except in certain
circumstances not relevant here “a person may not act as a guide without a valid
license” and acting as an unlicensed guide is a Class D crime punishable by a fine
and imprisonment. 12 M.R.S. § 12853(1-2).
Applicants must pass a guide examination, be certified in first aid, and submit
to a background check that requires the applicant to have fingerprints taken. 	12
M.R.S. § 12853(4). 	The statute provides that “[t]he commissioner may revoke,
suspend, refuse to issue or refuse to renew a guide license” if “the guide or an
applicant for a guide license has been convicted of committing a crime in the State or
any other jurisdiction that is punishable by imprisonment for a term of one year.” 12
M.R.S. § 10908(1). An applicant denied a license because of a past conviction has the
right to request “a hearing before the commissioner” and “[f]ollowing the hearing, the
commissioner may issue a guide license or reinstate a guide license that has been
revoked, suspended or denied if the commissioner determines that the applicant has
been sufficiently rehabilitated from the conviction to warrant the public trust or the
nature 	of 	the 	conviction 	or 	the 	circumstances 	surrounding 	it 	do 	not 	warrant
disqualification from licensure.” Id. Applicants are then entitled to institute “judicial
review of final agency action” “by filing a petition for review in the Superior Court”
within 30 days after receiving an adverse decision. 5 M.R.S. § 11002.
construe the well-pleaded facts in the light most favorable to the plaintiffs, accepting their truth and
drawing all reasonable inferences in plaintiffs’ favor.” (internal citation omitted)).
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B. 	JB Nicholas’ Application for a Guide License
Mr. Nicholas is an “expert fly fisher and experienced wilderness traveler” who
seeks to specialize in fly fishing as a Maine guide, escorting clients on multi-day
wilderness 	trips 	to 	teach 	them 	“about 	fly 	fishing, 	camping, 	hiking, 	paddling,
navigation, gourmet field cookery, safety and generally living as fully and free from
fear as possible.” Compl. ¶¶ 13-14.
In 1991, Mr. Nicholas was convicted of second-degree manslaughter in New
York and sentenced to a maximum of 19 years imprisonment. 	Id. ¶ 2. 	While
incarcerated, he became a “jailhouse lawyer” serving other prisoners; Mr. Nicholas
was paroled for good behavior in 2003, and graduated from New York University in
2006. Id. He became a journalist and won multiple awards for his reporting. Id. ¶¶
3-4.
Mr. Nicholas applied for a guide license and the Commissioner denied his
application on January 13, 2023. 	Def.’s Mot., Attach. 1, Aff. of Christopher Cloutier
at 3 (Cloutier Aff.). 	The denial referenced Mr. Nicholas’ past felony conviction and
informed him that he “ha[d] the opportunity to request” a hearing and “[t]hat hearing,
if requested, will be held pursuant to Title 12 M.R.S.A., Section 10908.” 	Id. 	Mr.
Nicholas requested a hearing, which was held on February 17, 2023. Id. at 4. At the
hearing, he was “given an opportunity to present evidence” that he had been
rehabilitated, including inviting witnesses to “testif[y] on [his] behalf, both in writing
and during the hearing.” Id. at 5-6.
After the hearing, the Commissioner affirmed the denial of Mr. Nicholas’
application. 	Id. at 4-7 (Commissioner’s Decision). 	Her decision stated that “[i]f
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granted a guide license Nicholas would be entrusted with the safety and welfare of
the adults and children under his charge, individuals who may have little or no
experience engaging in such activities in the woods or on the waters of the State of
Maine.” Id. at 6-7. She concluded that “the circumstances of the crime and Nicholas’
actions following it show a serious lack of judgment” and “based on the record
evidence, I do not find that Nicholas has been sufficiently rehabilitated to warrant
the public trust for the issuance of a Maine guide license.” 	Id. at 7. 	Finally, the
Commissioner informed Mr. Nicholas that he was entitled to appeal her decision by
filing an appeal in the Superior Court within 30 days. Id.
III. 	THE PARTIES’ POSITIONS
A. 	The Commissioner’s Motion to Dismiss
The Commissioner interprets Mr. Nicholas’ suit primarily as an as-applied
challenge and asserts that he has failed to allege standing or ripeness. Def.’s Mot. at
1-2. She adds that Mr. Nicholas is entitled to seek review by the state Superior Court
and the ongoing state process requires the Court to dismiss the complaint based on
sovereign immunity while also warranting abstention. 	Id. at 2. 	Moreover, the
Commissioner contends that Mr. Nicholas’ Privileges and Immunities Clause claim
fails to state a claim upon which relief can be granted. Id.
Regarding abstention, the Commissioner submits that “this Court should,
pursuant to Burford v. Sun Oil Co., 319 U.S. 315 (1943), abstain from deciding
Plaintiff’s constitutional challenges pending completion of state court proceedings.”
Id. at 3. 	She reasons that Burford abstention is appropriate because “timely and
adequate state-court review is available,” and the Court’s consideration of the merits
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of the complaint would “usurp the role of state administrative agencies in deciding
issues of state law and policy that are committed in the first instance to expert
administrative resolution.” Id. at 10 (quoting Chico Serv. Station v. Sol Puerto Rico
Ltd., 633 F.3d 20, 32 (1st Cir. 2011)) (internal quotation marks omitted).
The Commissioner also asserts that, to the extent the Court interprets Mr.
Nicholas’ Complaint as bringing a facial challenge to the constitutionality of Maine’s
licensing process for guides, this challenge fails to meet the narrow “facial challenge”
exception to the standing requirement. 	Id. at 5 n.1 (citing Whiting v. Town of
Westerly, 942 F.2d 18, 21 (1st Cir. 1991)). 	She submits that, furthermore, Mr.
Nicholas’ 	argument 	fails 	as 	a 	matter 	of 	law 	because 	Maine 	law 	does 	not
presumptively 	bar 	felons 	from 	being 	licensed 	as 	guides 	and 	the 	review 	is
discretionary. Id.
B. 	JB Nicholas’ Opposition to the Motion to Dismiss
Mr. Nicholas counters that he has standing because he has applied for and
been denied a license. Pl.’s Opp’n at 4. His response characterizes his suit as bringing
both facial and as-applied challenges. 	Id. at 3 (“Plaintiff’s facial challenge . . . was
ripe” and he “has fully exhausted all administrative remedies making his as-applied
challenge ripe”). 	He submits that the review process provided by Maine law “does
not protect Plaintiff's federal constitutional rights.” Id. at 8 (emphasis in Pl.’s Opp’n.).
Mr. 	Nicholas 	submits 	further 	that 	his 	facial 	challenge 	was 	ripe 	upon
enactment of the amendment and his as-applied challenge became ripe on April 10,
2023, when the Commissioner affirmed the denial of his application. 	Id. at 9-10.
Regarding the Commissioner’s Burford argument, he counters that “[t]here are no
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‘ongoing state proceedings’” and that “Plaintiff chose, four months ago, to litigate the
constitutionality of Defendant's action in this federal court-as is his right under the
Constitution and under federal law duly enacted by Congress.” 	Id. at 11-12. 	He
asserts that Burford is disfavored and this case does not involve the type of
specialized state law questions warranting abstention. Id. at 13-15.
Finally, Mr. Nicholas contends that his right to be a guide is protected First
Amendment activity and the state’s restrictions are subject to strict scrutiny. Id. at
16-18.
C. 	The Commissioner’s Reply in Support of Her Motion to Dismiss
In reply, the Commissioner submits that, if Mr. Nicholas does not appeal her
decision within the 30 days provided by statute, further review “will be barred by res
judicata.” 	Def.’s Reply at 2. 	She reiterates that Mr. Nicholas “fail[s] to assert any
deficiency in Maine’s guide licensure statutes or regulations which could support a
First Amendment challenge, let alone a facial challenge.” Id. at 4-5.
IV. 	LEGAL STANDARD
Rule 12(b)(6) requires dismissal of a complaint that “fail[s] to state a claim
upon which relief can be granted.” 	F ED. R. CIV. P. 12(b)(6). 	To state a claim, a
complaint must contain, among other things, “a short and plain statement of the
claim showing that the pleader is entitled to relief.” F ED. R. CIV. P. 8(a)(2). In other
words, a complaint must contain “sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’” 	Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 	A claim is
facially plausible when “the plaintiff pleads factual content that allows the court to
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draw the reasonable inference that the defendant is liable for the misconduct
alleged.” 	Id. (citing Twombly, 550 U.S. at 556). 	Plausible means “‘something more
than 	merely 	possible’ 	or 	‘merely 	consistent 	with 	a 	defendant’s 	liability.’”
Germanowski v. Harris, 854 F.3d 68, 71-72 (1st Cir. 2017) (internal citation omitted)
(quoting Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir.
2012)); Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 11 (1st Cir. 2011)). This is
a “‘context-specific’ job that compels [judges] ‘to draw on’ [their] ‘judicial experience
and common sense.’” Schatz, 669 F.3d at 55 (quoting Iqbal, 556 U.S. at 679).
This is a “two-step analysis.” 	Cardigan Mountain Sch. v. N.H. Ins. Co., 787
F.3d 82, 84 (1st Cir. 2015). “First, the court must distinguish ‘the complaint’s factual
allegations (which must be accepted as true) from its conclusory legal allegations
(which need not be credited).’” 	García-Catalán v. United States, 734 F.3d 100, 103
(1st Cir. 2013) (quoting Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir.
2012)); see also Schatz, 669 F.3d at 55 (stating that a court may “isolate and ignore
statements in the complaint that simply offer legal labels and conclusions or merely
rehash cause-of-action elements”). 	“Second, the court must determine whether the
factual allegations are sufficient to support ‘the reasonable inference that the
defendant is liable for the misconduct alleged.’” 	García-Catalán, 734 F.3d at 103
(quoting Haley v. City of Bos., 657 F.3d 39, 46 (1st Cir. 2011)).
V. 	DISCUSSION
Ambiguity 	in 	Mr. 	Nicholas’ 	pleadings, 	viewed 	in 	combined 	with 	the
administrative 	proceedings 	occurring 	in 	parallel 	to 	his 	federal 	action, 	creates
uncertainty as to whether Mr. Nicholas is pleading his claims as facial challenges,
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as-applied challenges, or both. Mr. Nicholas filed his Complaint even before the first
denial of his application for a license as a Maine guide and, accordingly, he phrased
the Complaint as a facial challenge. 	However, as noted above, in his opposition to
the state’s motion to dismiss, Mr. Nicholas also characterizes his Complaint as an as-
applied challenge. Accordingly, the Court analyzes the sufficiency of the Complaint
under both rubrics.
A. 	JB Nicholas’ Facial Challenge to Maine’s Licensing Regulations
1. 	First Amendment Challenge
To succeed in a typical facial attack, a challenger must establish “that no set
of circumstances exists under which [the challenged regulations] would be valid or
that the statute lacks any plainly legitimate sweep.” United States v. Stevens, 559
U.S. 460, 472 (2010). In the First Amendment context, the Supreme Court recognizes
“a second type of facial challenge,” under which a law may be invalidated as overbroad
if “a substantial number of its applications are unconstitutional, judged in relation to
the 	statute’s 	plainly 	legitimate 	sweep.” 	Wash. 	State 	Grange 	v. 	Wash. 	State
Republican Party, 552 U.S. 442, 449 n. 6 (2008).
Mr. Nicholas submits that he “does have a First Amendment right to be a
guide, under undisputed precedent from the DC and Fourth Circuit Courts of Appeals
. . . [and t]he appropriate standard of review is strict scrutiny.” 	Pl.’s Opp’n at 19
(citing Billups v. City of Charleston, 961 F.3d at 682-84 (4th Cir. 2020) and Edwards
v. District of Columbia, 755 F.3d at 1001-09 (D.C. Cir. 2014)). Mr. Nicholas is correct
that those cases held that licensing schemes for city tour guides may infringe on First
Amendment rights; however, the Billups and Edwards courts applied intermediate,
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not strict, scrutiny. 	961 F.3d at 685 (“In applying intermediate scrutiny to the
Ordinance, we follow the roadmap provided by the Supreme Court . . .”); 755 F.3d at
1000 (“assuming the regulations are content-neutral, we hold they fail even under
the more lenient standard of intermediate scrutiny”).
Intermediate scrutiny applies to regulations on expression that are content-
neutral. 	As the First Circuit described in Rideout v. Gardner, 838 F.3d 65 (1st Cir.
2016):
These laws do not apply to speech based on or because of the content of
what has been said, but instead “serve[] purposes unrelated to the
content of expression.” 	Ward v. Rock Against Racism, 491 U.S. 781,
791(1989). “The principal inquiry in determining content neutrality ... is
whether the government has adopted a regulation of speech because of
disagreement with the message it conveys. The government’s purpose is
the 	controlling 	consideration. 	A 	regulation 	that 	serves 	purposes
unrelated to the context of expression is deemed neutral....” Id. (citation
omitted). 	Content-neutral 	restrictions 	are 	subject 	to intermediate
scrutiny, which demands that the law be “narrowly tailored to serve a
significant 	governmental 	interest.” 	Id. 	“[U]nlike 	a 	content-based
restriction of speech, [a content-neutral regulation] ‘need not be the least
restrictive 	or 	least 	intrusive 	means 	of’ 	serving 	the 	government's
interests.” McCullen v. Coakley, [573 U.S. 464, 486] (2014) (quoting
Ward, 491 U.S. at 798).
Id. at 71-72. Here, the challenged licensing regulations are plainly content-neutral,
as they do not disfavor any particular message and serve purposes unrelated to the
content of expression. 	To survive intermediate scrutiny, they must be “narrowly
tailored to serve a significant governmental interest” but “need not be the least
restrictive or least intrusive means of' serving the government’s interests.” Id. at 72
(citations and internal quotations omitted).
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The Court does not view Edwards or Billups as apposite to this analysis.
Edwards involved regulations for “sightseeing guide[s]” giving historic tours of
Washington, D.C., and that panel’s analysis focused primarily on the requirement
that 	prospective 	guides 	pass 	a 	100-question 	multiple 	choice 	exam 	as 	unduly
burdensome on speech. 	755 F.3d at 998, 1009 (“The District failed to present any
evidence the problems it sought to thwart actually exist . . . [and] there is no evidence
the exam requirement is an appropriately tailored antidote”). 	Similarly, in Billups
the controversy centered on whether requiring that “a prospective guide must pass a
200-question written examination that focuses on Charleston’s history, architecture,
and historic preservation efforts” was narrowly tailored to serve the city’s “significant
interest in protecting its tourism industry.” 961 F.3d at 676.
Mr. Nicholas, however, has not challenged the validity of Maine’s exam
requirement; 	instead, 	he 	focuses 	on 	the 	background 	check 	and 	potential 	for
applicants to be denied a license because of a past felony conviction. 	Unlike in
Edwards and Billups, the primary government interest asserted is not protecting the
state’s tourism industry from unknowledgeable guides, but in protecting public
safety. See Commissioner’s Decision at 6 (“[i]f granted a guide license Nicholas would
be entrusted with the safety and welfare of the adults and children under his charge,
individuals who may have little or no experience engaging in such activities in the
woods or on the waters of the State of Maine”); Cutting v. City of Portland, Maine,
802 F.3d 79, 86 (1st Cir. 2015) (recognizing that the government’s “interest in
protecting public safety” is “a legitimate and significant one”).
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The state government’s interest in public safety is weightier than its interest
in protecting the tourism industry and, moreover, public safety concerns are more
salient when licensing guides to lead overnight trips into the wilderness than
“sightseeing guides” to give historical tours of major cities. In Kagan v. City of New
Orleans, Louisiana, 	753 F.3d 560 (5th Cir. 2014), the Fifth Circuit, applying
intermediate scrutiny, upheld a licensing regime for city tour guides providing that
guides “must not have been convicted of a felony within the prior five years.” Id. at
561. 	The Kagan Court reasoned that “New Orleans, by requiring the licensees to
know the city and not be felons or drug addicts, has effectively promoted the
government interests, and without those protections for the city and its visitors, the
government interest would be unserved.” Id. at 562.
Maine has a significant interest in public safety and the question becomes
whether its licensing regulations are narrowly tailored to serve that interest. 	Mr.
Nicholas contends that the licensing regime is facially unconstitutional because it:
(1) Requires giving fingerprints to police;
(2) Presumptively disqualifies applicants . . . who have previously been
convicted of a felony, no matter how long ago;
(3) Gives unbridled discretion to the officials responsible for issuing
guide licenses;
(4) Fails to impose any time limits on the agency to issue or deny guide
license applications; and
(5) Lacks 	a 	meaningful and fair administrative 	hearing 	or appeal
process 	with 	the 	substantive 	and 	procedural 	rights 	and 	rules
required by clearly established Supreme Court precedent.
Compl. ¶ 1. 	The Court disagrees, concluding that the statute’s provisions are
sufficiently narrowly tailored to survive Mr. Nicholas’ facial challenge.
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The licensing of guides “entrusted with the safety and welfare of the adults
and children under [their] charge, individuals who may have little or no experience
engaging in such activities in the woods or on the waters of the State of Maine,”
Commissioner’s Decision at 6, reasonably implicates the state’s significant interest in
public safety—and more so than the licensing of city sightseeing guides. 	The
requirement of a background check is an important and relatively nonintrusive
means to serve that end—to determine, for example, whether the leader of a
children’s overnight fishing trip has been previously convicted of child sex abuse.
Notably, the statute, on its face, does not presumptively or categorically bar
convicted 	felons 	from 	receiving 	a 	license.2 	Instead, 	it 	provides 	that 	“[t]he
commissioner may revoke, suspend, refuse to issue or refuse to renew a guide license”
to such persons, 12 M.R.S. § 10908(1) (emphasis supplied), who then has the right to
request “a hearing before the commissioner” and “[f]ollowing the hearing, the
commissioner may issue a guide license or reinstate a guide license that has been
2 	As an applicant for a license, Mr. Nicholas had the obligation to demonstrate that he met state
qualifications for the license.
Although Mr. Nicholas says that the statute creates a presumption against felons, the Court
does not view this statutory scheme as creating a presumption. 	It only requires the applicants to
demonstrate that they meet state qualifications for a license. If the applicant is a felon, the statute
requires the applicant to show one of three matters: (1) sufficient rehabilitation, (2) the nature of the
conviction should not bar the license, or (3) the circumstances surrounding the conviction should not
bar the license. Placing a burden on applicants to demonstrate that they meet the requirements of
the statute for a license is different, in the Court’s view, from a presumption that whatever the
conviction, they are presumed not to qualify.
Even if the statute could be interpreted as creating a presumption, this would not present an
issue of constitutional dimension. The Supreme Court has written that “[o]utside 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, 424 U.S. 577, 585 (1976); United States v. $ 250,000
in United States Currency, 808 F.2d 895, 900 (1st Cir. 1987) (“Generally, Congress may alter the
traditional allocation of the burden of proof without infringing upon the litigant's due process rights
unless the statute is criminal in nature”); Mallinckrodt LLC v. Littell, 616 F. Supp. 2d 128, 148 (D.
Me. 2009).
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revoked, suspended or denied if the commissioner determines that the applicant has
been sufficiently rehabilitated from the conviction to warrant the public trust or the
nature 	of 	the 	conviction 	or 	the 	circumstances 	surrounding 	it 	do 	not 	warrant
disqualification from licensure.” Id. The applicant is then entitled to judicial review
of this decision in the state court system.3 5 M.R.S. §§ 11001-11002. The combination
of permissiveness, individualized determination, and opportunity for review built
into this licensing regime allow it to survive facial challenge—on its face, the statute
does not bar convicted felons from receiving a license, nor does it deny them judicial
review.
Mr. Nicholas’ challenge fails to clear the lowered bar for facial challenges in
the First Amendment context, where a law may be invalidated as overbroad if “a
substantial number of its applications are unconstitutional, judged in relation to the
statute’s plainly legitimate sweep.” Wash. State Grange, 552 U.S. at 449 n. 6. This
statute, on its face, does not categorically prohibit any applicants from licensure;
instead, it provides only that the Commissioner may, at her discretion, refuse to issue
licenses to persons with felony convictions; the statute further provides that an
applicant has a right to a hearing before the Commissioner and the applicant also
may challenge the Commissioner’s determination in state court system. Mr. Nicholas
has fallen far short of demonstrating that “a substantial number of [the statute’s]
applications are unconstitutional, judged in relation to [its] plainly legitimate sweep.”
3 	The state concedes that the Commissioner’s decision is a “final agency action” under 5 M.R.S.
§ 11001(1). Def.’s Mot. at 9; Commissioner’s Decision at 3 (notifying Mr. Nicholas of his right to appeal
her decision to the Superior Court).
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Id. 	Maine’s guide licensing regime is narrowly tailored to serve a significant
governmental interest and thereby survives Mr. Nicholas’ facial challenge on First
Amendment grounds.
2. 	Fourteenth Amendment Challenge
Mr. Nicholas also challenges the licensing regime on Fourteenth Amendment
due process and Privileges and Immunities grounds because it:
(1) Requires giving fingerprints to police;
(2) Presumptively disqualifies applicants . . . who have previously been
convicted of a felony, no matter how long ago;
(3) Gives unbridled discretion to the officials responsible for issuing
guide licenses;
(4) Fails to impose any time limits on the agency to issue or deny guide
license applications; and
(5) Lacks 	a 	meaningful and fair administrative 	hearing 	or appeal
process 	with 	the 	substantive 	and 	procedural 	rights 	and 	rules
required by clearly established Supreme Court precedent.
Compl. ¶¶ 28-29. Because these are not First Amendment challenges, Mr. Nicholas
must establish “that no set of circumstances exists under which [the challenged
regulations] would be valid or that the statute lacks any plainly legitimate sweep.”
Stevens, 559 U.S. at 472. He has not met this burden for either challenge.
Mr. Nicholas’ Complaint does not flesh out the theories or authority underlying
his Fourteenth Amendment due process challenge, but the gravamen of his claim
appears to be that the judicial review guaranteed by the statute is insufficient
because “[i]t does not protect Plaintiff’s federal constitutional rights. It does not allow
Plaintiff to fully and fairly litigate the constitutional claims made in this case-and
secure, if he is successful, the systemic relief this Court-and only this Court-is
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empowered to effect.” Pl.’s Opp’n at 8. However, as Judge Brock Hornby of this court
held in Christian Action Network v. Maine, 679 F. Supp. 2d 140 (D. Me. 2010):
The 	Maine 	Administrative 	Procedure 	Act 	allows 	presentation 	of
“arguments on all issues” in adjudicatory hearings, 5 M.R.S.A. § 9056(2),
and all final agency actions are subject to judicial review in the Superior
Court or the Supreme Judicial Court sitting as the Law Court, 5
M.R.S.A. §§ 11001-11008 (2009). 	There is no indication in the statute
that 	Maine’s 	administrative 	procedures 	preclude 	consideration 	of
constitutional issues; and even if officials here refused to rule on the
constitutionality of the statute that they are charged to administer,
judicial 	review 	of 	administrative 	proceedings--which 	does 	permit
constitutional 	review 	. 	. 	. 	provide[s] 	an 	opportunity 	to 	make
constitutional 	arguments. 	See 	Middlesex 	[Cnty. 	Ethics 	Comm. 	v.
Garden State Bar Ass’n], 457 U.S. [423, 436 (1982)]; see also Globe Air,
Inc. v. Thurston, 438 A.2d 884, 886 (Me. 1981) (noting that judicial
review includes reversal or modification of agency action if “[i]n violation
of 	constitutional 	or 	statutory 	provisions” 	(quoting 	5 	M.R.S.A. 	§
11007(4)(C)(1)).
Id. at 145-46; see also Michalowski v. Head, No. CV-10-278-B-W, 2010 U.S. Dist.
LEXIS 68979, at *15 (D. Me. July 12, 2010) (“The Maine Administrative Procedures
Act allows for judicial review of the Board’s decision” and thus the plaintiff “has an
adequate opportunity to raise federal constitutional challenges in state court judicial
review”).
Although Mr. Nicholas protests that state court review “does not protect
Plaintiff’s federal constitutional rights,” Pl.’s Opp’n at 8, “a federal court must
presume that state courts, consistent with the imperatives of the Supremacy Clause,
see U.S. Const. art. VI, are fully competent to adjudicate federal constitutional. . .
claims properly presented by the parties.” Casa Marie, Inc. v. Superior Court of P.R.,
988 F.2d 252, 262 (1st Cir. 1993) (citing Middlesex, 457 U.S. at 431).
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Mr. Nicholas has not met his burden to mount a facial challenge on due process
grounds.
3. 	Privileges and Immunities Challenge
Finally, Mr. Nicholas alleges that the licensing regime violates “Plaintiff’s
rights under the Constitution’s Privileges and Immunities Clause, U.S. Const., Art.
IV, § 2.” 	Compl. ¶ 28. 	The Commissioner submits that this count fails to state a
cognizable claim because the cited clause “appl[ies] to circumstances in which a
citizen of one state alleges that another state has not treated them equally to its own
citizens” and Mr. Nicholas “fails to allege any unequal treatment based on his state
of residence.” 	Def.’s Mot. at 7. 	Mr. Nicholas does not appear to have responded to
this argument in his opposition and for that reason alone his claim is procedurally
defaulted.
Moreover, this claim clearly fails on the merits. The Privileges and Immunities
Clause of Article IV of the Constitution provides that “[t]he Citizens of each State
shall be entitled to all Privileges and Immunities of Citizens in the several States.”
U.S. CONST ., ART . IV, § 2. 	It requires that “a State must accord residents and
nonresidents equal treatment.” 	Supreme Ct. of New Hampshire v. Piper, 470 U.S.
274, 279 (1985). Yet Mr. Nicholas has made no allegation that Maine treats residents
and nonresidents differently.
Mr. Nicolas’ claim appears to be based on a misunderstanding recently
explained by the First Circuit in Gattineri v. Town of Lynnfield, 58 F.4th 512 (1st Cir.
2023). 	In that case, the plaintiffs argued that their “right to earn a living” was
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protected by the Privileges and Immunities Clause and the First Circuit clarified
that:
Appellants attempt to argue that our precedents have recognized that
the Privileges and Immunities Clause protects a fundamental right to
earn a living. See Piper v. Supreme Ct. of New Hampshire, 723 F.2d 110,
118 (1st Cir. 1983). 	We first note that there are two versions of the
Clause, the first in Article IV § 2 (Privileges and Immunities Clause)
and the second in the Fourteenth Amendment (Privileges or Immunities
Clause), with distinct applications. 	See Baldwin v. Fish & Game
Comm'n of Montana, 436 U.S. 371, 382 (1978) (Article IV § 2 “prevents
a State from discriminating against citizens of other States in favor of
its own.”); Saenz v. Roe, 526 U.S. 489, 503 (1999) (quoting Slaughter-
House Cases, 83 U.S. 36, 16 Wall. 36, 80 (1872), and explaining that the
Fourteenth Amendment's Privileges or Immunities Clause provides a
citizen of one State “with the same rights as other citizens of that
State”). Appellants appear to have pled and argued the latter, but they
rely upon Piper, which addressed Article IV § 2 and, if anything, would
protect the right to pursue work in a state where that individual is a
nonresident. See Piper, 470 U.S. at 280-81, 281 n.10. 	Here, even if
Appellants 	claimed 	the 	Article 	IV 	§ 	2 	version, 	all 	parties 	are
Massachusetts residents, so they get nowhere. 	As to the Fourteenth
Amendment version of the Clause, Appellants have pointed to no
authority, nor have we found any, holding that it provides for a
fundamental right to earn a living. Cf. Head v. New Mexico Bd. of
Examiners 	in 	Optometry, 	374 	U.S. 	424, 	432 	n.12 	(1963) 	(“[T]he
Privileges [or] Immunities Clause of the Fourteenth Amendment does
not create a naked right to conduct a business free of otherwise valid
state regulation.”) (citing Madden v. Kentucky, 309 U.S. 83, 92-93
(1940)).
Id. at 515-16. 	The Court need not opine on a hypothetical Fourteenth Amendment
Privileges or Immunities claim Mr. Nicholas has not pleaded, but the Privileges and
Immunities claim he has pleaded fails to state a claim upon which relief can be
granted and must be dismissed.
B. 	JB Nicholas’ As-Applied Claims
Mr. Nicholas’ Complaint does not reference any as-applied claims and it is
unclear that he could have pleaded any at the time—given that he filed his Complaint
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before the Commissioner first denied his application. 	However, since he filed the
Complaint, the Commissioner has twice denied his license application—initially and
then on administrative appeal after a hearing—and Mr. Nicholas references in his
opposition his “as-applied challenge to Maine’s guide licensing scheme”, which he
believes ripened on April 10, 2023, when the Commissioner denied his appeal. Pl.’s
Opp’n at 10. The Court thus considers whether it would be appropriate to rule on his
potential as-applied challenges, even if they are not currently pleaded in the
operative complaint.
The Court concludes that Burford abstention is warranted for the reasons
outlined in Kilroy v. Mayhew, 841 F. Supp. 2d 414 (D. Me. 2012) and dismisses the
complaint 	without 	prejudice. 	The 	Supreme 	Court 	has 	outlined 	the 	Burford
abstention doctrine:
Where timely and adequate state-court review is available, a federal
court sitting in equity must decline to interfere with the proceedings or
orders of state administrative agencies: (1) when there are “difficult
questions of state law bearing on policy problems of substantial public
import whose importance transcends the result in the case then at bar”;
or (2) where the “exercise of federal review of the question in a case and
in similar cases would be disruptive of state efforts to establish a
coherent policy with respect to a matter of substantial public concern.”
Chico Serv. Station, Inc. v. Sol P.R. Ltd., 633 F.3d 20, 29 (1st Cir. 2011) (quoting New
Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 361 (1989)). There
is a “strong presumption in favor of the exercise of jurisdiction,” and the First Circuit
has held that “Burford abstention must only apply in unusual circumstances, when
federal review risks having the district court become the regulatory decision-making
center.” 	Id. at 30 (citation and internal quotations omitted). 	It has also held that
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“abstention in the Burford line of cases rested upon ... the threat ... that the federal
court might, in the context of the state regulatory scheme, create a parallel,
additional, federal, ‘regulatory review’ mechanism, the existence of which would
significantly increase the difficulty of administering the state regulatory scheme.”
Forty Six Hundred LLC v. Cadence Educ., LLC, 15 F.4th 70, 75 (1st Cir. 2021)
(quoting Bath Mem’l Hosp. v. Maine Health Care Fin. Comm’n, 853 F.2d 1007, 1013
(1st Cir. 1988)).
In Kilroy, the plaintiff received disability benefits from the Social Security
Administration (SSA) and food assistance benefits from the federal Supplemental
Nutrition Assistance Program (SNAP), which are administered in Maine by the
Maine Department of Health and Human Services (DHHS). 841 F. Supp. 2d at 417.
DHHS determined that it would include Ms. Kilroy’s SSA benefits as income for the
purpose of calculating her SNAP benefits, lowering the amount she received. Id. Ms.
Kilroy disagreed with the determination and requested a hearing to appeal the
decision. 	Id. 	A hearing was held and DHHS then issued a decision affirming its
earlier decision—and then an amended decision affirming the previous decisions. Id.
at 417-18. 	Within 30 days of the amended decision, Ms. Kilroy filed an action in
federal district court challenging the determination and seeking injunctive relief. Id.
at 418.
In assessing whether Burford abstention was appropriate, the district court
considered three factors: the availability of state-court review; potential interference
with state policymaking; and the likelihood of conflict with state proceedings. Id. at
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419-24. Regarding the availability of state court review, the judge in Kilroy outlined
Maine’s same provisions for judicial review of administrative action at issue in this
case, concluding that “state court review is sufficiently timely and adequate to
support Burford abstention” and that “Plaintiff’s effort to circumvent this timely and
adequate 	state 	court 	procedure 	triggers 	a 	fundamental 	concern 	of 	Burford
abstention—specifically, having the district court become the ‘regulatory decision-
making 	center’ 	and 	creating 	a 	dual 	review 	structure 	for 	adjudicating 	Maine
regulatory actions.” Id. at 421 (quoting Chico, 633 F.3d at 30).
The judge in Kilroy found further that the plaintiff’s suit interfered with state
law and policymaking, and also that “[f]ederal court review of this case would conflict
with the state proceeding, as Plaintiff seeks review of a state administrative decision
in federal court rather than state court.” Id. at 421-43. He concluded that “because
conflict with state administrative processes cannot be avoided in this case, Burford
abstention is warranted.” Id. at 424.
The same reasoning applies for Mr. Nicholas’ as-applied challenge. 	As in
Kilroy, Maine’s licensing regime guarantees Mr. Nicholas “state court review [that]
is sufficiently timely and adequate to support Burford abstention.” 	Id. at 421.
Likewise, his “effort to circumvent this timely and adequate state court procedure
triggers a fundamental concern of Burford abstention—specifically, having the
district court become the ‘regulatory decision-making center’ and creating a dual
review structure for adjudicating Maine regulatory actions.” 	Id. at 421 (quoting
Chico, 633 F.3d at 30). This concern is even greater here than in Kilroy.
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In Kilroy, the plaintiff appears to have filed her federal action after the final
administrative decision, in lieu of appealing to the state Superior Court. Id. at 418.
By the time the district court abstained on Burford grounds, her 30-day window to
seek review in state court had long passed. Compare id. (filed on January 13, 2012)
with id., Compl. (filed September 9, 2011). 	Thus, while Ms. Kilroy may have
attempted to circumvent state review by jumping to federal court, at no point were
state and federal review proceeding on parallel tracks.
Here, by contrast, Mr. Nicholas filed his Complaint in federal court on January
9, 2023. 	While his Complaint been pending and while the parties have been filing
briefs in this court, at the administrative level the Commissioner has denied his
initial application, Mr. Nicholas requested a hearing, the Commissioner held a
hearing, Mr. Nicholas presented evidence, the Commissioner denied his appeal, and
now Mr. Nicholas is entitled to appeal that decision in state court. 	These parallel
proceedings appear to the Court exactly the type of “dual review structure for
adjudicating a state’s specific regulatory actions” that the Burford doctrine is
designed to prevent. Chico, 633 F.3d at 34.
Furthermore, “exercise of federal review of the question in a case and in similar
cases would be disruptive of state efforts to establish a coherent policy with respect
to a matter of substantial public concern.” 	Id. at 29. 	As mentioned previously, the
public safety issues related to wilderness guiding raise matters of substantial public
concern, and—where “Maine has developed comprehensive procedures for appealing
the Departments . . . determinations,” Kilroy, 841 F. Supp. 2d at 422—permitting any
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applicant denied a license because of a past conviction to circumvent the state process
to jump instead (or in this case, concurrently) to federal court would be disruptive of
the state’s efforts to establish a coherent policy. Ultimately, Burford abstention is
appropriate for Mr. Nicholas’ as-applied challenges and the Court dismisses his
claims. However, unlike in Kilroy, Mr. Nicholas may still seek the judicial review of
the administrative decision in state court.
VI. 	CONCLUSION
The Court GRANTS Commissioner Judy Camuso’s Motion to Dismiss (ECF
No. 10). The Court DISMISSES without prejudice all counts of the Complaint to the
extent they are pleaded as as-applied challenges and DISMISSES with prejudice all
counts to the extent they are pleaded as facial challenges. 	Because the Court
dismisses Mr. Nicholas’ suit, it also DISMISSES as moot his Motion for a Preliminary
Injunction (ECF No. 4) and Motion to Supplement the Record (ECF No. 17).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 12th day of May, 2023
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