MAINE	SUPREME	JUDICIAL	COURT	                                         Reporter	of	Decisions	
Decision:	    2017	ME	7	
Docket:	      Ken-16-35	
Submitted	
  On	Briefs:	 October	13,	2016	
Decided:	     January	12,	2017	
	
Panel:	       ALEXANDER,	MEAD,	GORMAN,	JABAR,	and	HUMPHREY,	JJ.	
	
	
                              DANIEL	E.	MUTTY	
                                      	
                                     v.	
                                      	
                         DEPARTMENT	OF	CORRECTIONS	
	
	
PER	CURIAM	

      [¶1]	 	 This	 appeal	 concerns	 whether	 a	 petition	 to	 review	 a	 disciplinary	

decision	 by	 the	 Department	 of	 Corrections	 was	 timely	 filed	 and	 whether	 the	

court	properly	dismissed	the	petition	for	lack	of	jurisdiction.	

      [¶2]	 	 Daniel	 E.	 Mutty	 appeals	 from	 a	 judgment	 of	 the	 Superior	 Court	

(Kennebec	 County,	 Marden,	 J.)	 dismissing	 his	 Rule	 80C	 petition	 for	 failure	 to	

state	 a	 claim	 and	 an	 order	 (Murphy,	 J.)	 denying	 his	 motion	 to	 set	 aside	 the	

judgment	pursuant	to	M.R.	Civ.	P	60(b).		We	conclude	that	the	court	erred	in	

dismissing	the	petition	and	vacate	the	judgment.	
2	

                                            I.		BACKGROUND1	

         [¶3]	 	 On	 July	 21,	 2015,	 Daniel	 E.	 Mutty	 filed	 a	 petition	 in	 the	 Superior	

Court	challenging	a	disciplinary	decision	by	the	Department	of	Corrections	that	

resulted	in	a	deprivation	of	good-time	credit	and	the	imposition	of	monetary	

sanctions.		At	the	same	time,	Mutty	moved	to	proceed	without	payment	of	the	

filing	fee	and	service	costs	and	submitted	supporting	documentation.2			

	        [¶4]		On	September	10,	2015,	the	court	(Marden,	J.)	issued	a	written	order	

that	stated:		

      Petitioner	fails	to	state	a	claim	on	which	relief	can	be	granted.		The	
      court	 cannot	 determine	 its	 jurisdiction	 in	 the	 absence	 of	 its	
      determination	of	the	date	of	the	final	agency	action.		This	matter	
      will	be	dismissed	unless	the	petition	is	amended	within	15	days	of	
      receipt	of	this	order.	
      	
		Mutty’s	petition	was	dismissed	on	October	21,	2015.		The	docket	entry	stated	

“Case	dismissed	per	9/10/15	Order.”			




     1		The	record	and	procedural	history	in	this	case	are	convoluted	and	disorganized.		We	thus	recite	

the	background	in	some	detail.		See	Torres	v.	Dep't	of	Corr.,	2016	ME	122,	¶	2,	145	A.3d	1040.		We	
acknowledge	 that	 these	 cases,	 often	 wrought	 with	 procedural	 pitfalls	 and	 navigated	 by	
unrepresented	parties,	can	present	challenges	for	litigants	and	the	courts.		
    	
    2		The	record	materials,	including	the	docket,	reflect	that	Mutty’s	application	to	proceed	without	a	

filing	fee	and	to	cover	service	costs	submitted	in	July	2015	was	never	acted	upon.		Mutty’s	application	
included	 his	 general	 account	 statement	 for	 the	 previous	 six	 months.	 	 See	 Collins	 v.	 Dep’t	 of	 Corr.,	
2015	ME	112,	¶¶	4-5,	122	A.3d	955.		Because	the	waiver	was	never	acted	upon,	the	Department	was	
never	served	and	did	not	appear	in	this	case.	
    	
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        [¶5]		In	a	letter	dated	the	same	day	as	the	dismissal,	the	clerk	informed	

Mutty	that	correspondence	he	had	attempted	to	submit	to	the	court	had	been	

rejected	 as	 an	 ex	 parte	 communication	 and	 would	 not	 be	 accepted	 until	 he	

complied	with	the	applicable	civil	rules.		According	to	Mutty,	the	clerk	enclosed	

with	the	letter	an	amended	petition	that	he	had	mailed	on	September	17,	2015,	

in	an	attempt	to	comply	with	the	court’s	September	10	order.			

        [¶6]		On	November	4,	2015,	Mutty	attempted	to	file	a	notice	of	appeal	and	

an	 amended	 petition	 that	 alleged	 a	 final	 agency	 action	 date:	 July	 20,	 2015.		

Mutty	also	attempted	to	file	a	motion	to	reconsider.		The	notice	of	appeal	and	

motion	to	reconsider	were	rejected	on	November	21,	2015,	for	Mutty’s	failure	

to	include	a	filing	fee	or	an	application	to	waive	the	fee.		On	December	2,	2015,	

Mutty	 filed	 a	 motion	 pursuant	 to	 M.R.	 Civ.	 P.	 60(b)	 to	 set	 aside	 the	 order	

dismissing	his	petition,	together	with	a	motion	to	proceed	without	payment	of	

fees.		On	January	8,	2016,	the	court	(Murphy,	J.)	granted	the	motion	to	waive	

fees3	and	denied	the	Rule	60(b)	motion.			

        [¶7]	 	 On	 January	 19,	 2016,	 Mutty	 filed	 a	 second	 notice	 of	 appeal	 and	

submitted	an	application	to	proceed	with	the	appeal	without	payment	of	fees.		



   3		It	appears	this	waiver	only	applied	to	the	fee	for	the	Rule	60(b)	motion.		As	noted	previously,	

the	court	never	acted	upon	the	initial	application	for	a	fee	waiver	submitted	in	July	2015.			
4	

Mutty	sought	to	appeal	from	both	the	dismissal	of	his	petition	and	the	denial	of	

his	 Rule	 60(b)	 motion	 pursuant	 to	 5	 M.R.S.	 §	 11008(1)	 (2016)	 and	 M.R.	

App.	P.	2.		The	court	(Mullen,	J.)	granted	the	motion	to	proceed	with	the	appeal	

without	payment	of	fees	on	February	11,	2016.		This	appeal	followed.	

                                    II.		DISCUSSION		

	      [¶8]		An	appeal	from	a	final	agency	action	must	be	commenced	“within	

30	days	after	receipt	of	notice	if	taken	by	a	party	to	the	proceeding	of	which	

review	is	sought.”		5	M.R.S.	§	11002(3)	(2016).		The	time	limits	set	forth	in	the	

Administrative	 Procedure	 Act	 (APA),	 5	 M.R.S.	 §§	 11001-11008	 (2016),	 “are	

jurisdictional,”	Persson	v.	Dep’t	of	Human	Servs.,	2001	ME	124,	¶	9,	775	A.2d	363,	

meaning	that	unless	the	petition	is	timely	filed,	the	court	lacks	jurisdiction.		See	

Ramelli	 v.	 Unemployment	 Ins.	 Comm’n,	 2016	 ME	 6,	 ¶	 10,	 130	 A.3d	 963.	 	 If	

jurisdiction	is	lacking,	the	court	must	dismiss	the	petition.		M.R.	Civ.	P.	12(h)(3)	

(“Whenever	it	appears	by	suggestion	of	the	parties	or	otherwise	that	the	court	

lacks	 jurisdiction	 of	 the	 subject	 matter,	 the	 court	 shall	 dismiss	 the	 action.”).		

When	reviewing	a	motion	to	dismiss	for	“lack	of	subject	matter	jurisdiction,	we	

make	 no	 favorable	 inferences	 in	 favor	 of	 the	 plaintiff.”	 	 Tomer	 v.	 Me.	 Human	

Rights	Comm’n,	2008	ME	190,	¶	9,	962	A.2d	335.		We	have	emphasized	that	the	

APA’s	 time	 limits	 “must	 be	 applied	 uniformly	 and	 consistently	 to	 parties	
                                                                                      5	

represented	by	counsel	and	self-represented	parties	alike.”		Fournier	v.	Dep’t	of	

Corr.,	2009	ME	112,	¶	2,	983	A.2d	403.				

	     [¶9]		Because	the	court	dismissed	Mutty’s	petition	for	lack	of	jurisdiction,	

we	look	to	the	APA	to	determine	whether	the	court	had	jurisdiction.		See	Tomer,	

2008	ME	190,	¶¶	8-14,	962	A.2d	335.		We	review	de	novo	an	issue	of	statutory	

interpretation	and	a	dismissal	for	lack	of	jurisdiction.		See	Windham	Land	Tr.	

v.	Jeffords,	2009	ME	29,	¶	12,	967	A.2d	690;	Tomer,	2008	ME	190,	¶	9,	962	A.2d	

335.	 	 In	 construing	 statutes,	 we	 first	 consider	 the	 plain	 language	 “and	 we	

interpret	 [statutory]	 provisions	 according	 to	 their	 unambiguous	 meaning	

unless	the	result	is	illogical	or	absurd.”		Sabina	v.	JPMorgan	Chase	Bank,	N.A.,	

2016	 ME	 141,	 ¶	 6,	 148	 A.3d	 284	 (alteration	 in	 original)	 (quotation	 marks	

omitted).		

      [¶10]		Although	the	court	ordered	Mutty	to	allege	the	date	of	final	agency	

action,	the	relevant	date	for	purposes	of	jurisdiction	pursuant	to	the	APA	is	the	

date	Mutty	received	notice	of	the	agency	decision,	5	M.R.S.	§	11002(3),	not	the	

final	 agency	 action	 date.	 	 See	 Fournier,	 2009	 ME	 112,	 ¶	 2,	 983	 A.2d	 403.		

Furthermore,	 nothing	 in	 the	 statute	 requires	 petitioners	 to	 allege	 a	 specific	
6	

date,	but	rather	only	requires	that	they	allege	“the	final	agency	action	.	.	.	they	

wish	reviewed.”		5	M.R.S.	§	11002(2)	(2016).4			

         [¶11]		A	petition	that	states	a	claim	for	relief	and	facially	meets	statutory	

requirements	is,	at	least	preliminarily,	sufficient	to	establish	jurisdiction.		See	

Bureau	 of	 Taxation	 v.	 Town	 of	 Washburn,	 490	 A.2d	 1182,	 1186	 (Me.	 1985);	

Dufresne	v.	Bd.	of	Trs.,	428	A.2d	412,	414	(Me.	1981);	Sewall	v.	Spinney	Creek	

Oyster	 Co.,	 421	 A.2d	 36,	 38	 (Me.	 1980)	 (stating	 that	 the	 Maine	 Rules	 of	 Civil	

Procedure	 governing	 pleadings	 generally	 apply	 to	 petitions	 for	 review	 of	

government	 agency	 action	 brought	 pursuant	 to	 the	 APA);	 see	 also	 M.R.	

Civ.		P.	8(a).		

         [¶12]		On	the	other	hand,	the	court	may	properly	dismiss	a	petition	for	

lack	of	jurisdiction	when,	for	example,	the	date	the	petitioner	received	notice	of	

the	final	agency	action	is	clear	from	the	petition,	or	when	a	party	in	the	case	

raises	the	jurisdictional	defect,	and	the	court	then	determines	that	the	petition	

was	 untimely.	 	 See,	 e.g.,	 Collins,	 2015	 ME	 112,	 ¶¶	 2-3,	 11-12,	 122	 A.3d	 955;	

Fournier,	 2009	 ME	 112,	 ¶	 7,	 983	 A.2d	 403;	 Britton	 v.	 Dep’t	 of	 Conservation,	

2009	ME	60,	¶	12,	974	A.2d	303;	Davric	Me.	Corp.	v.	Bangor	Historic	Track,	Inc.,	


     4		The	APA	further	requires	that	the	petition	contain	the	“persons	seeking	review,”	the	“manner	in	

which	 they	 are	 aggrieved,”	 a	 statement	 as	 to	 the	 action	 or	 inaction	 under	 review,	 the	 demand	 for	
relief,	and	the	grounds	for	relief.		5	M.R.S.	§	11002(2)	(2016).	
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2000	ME	102,	¶¶	11-12,	751	A.2d	1024;	see	also	2	Harvey	&	Merritt,	Maine	Civil	

Practice	§	12:7	at	414-15	(3d,	2016-2017	ed.)	(“[T]he	court	will	dismiss	[for	

lack	 of	 subject	 matter	 jurisdiction]	 of	 its	 own	 initiative	 whenever	 the	 defect	

appears.”	 (emphasis	 added)).	 	 There	 must	 be	 some	 affirmative	 basis	 in	 the	

record	for	the	court	to	conclude	it	lacks	jurisdiction.		See	id.			

        [¶13]		The	court	erred	in	dismissing	the	petition.		By	ordering	Mutty	to	

allege	 a	 specific	 date,	 and	 dismissing	 for	 his	 failure	 to	 do	 so,	 the	 court	

improperly	required	that	the	petition	include	content	not	required	by	5	M.R.S.	

§	11002(2)	and	presumed	a	lack	of	jurisdiction	without	a	basis	to	discern	the	

date	Mutty	in	fact	received	notice.		See	5	M.R.S.	§	11002(3);	see	also	Pederson	v.	

Cole,	501	A.2d	23,	25	n.2	(Me.	1985)	(“Any	claimed	deficiency	in	the	pleading	

.	.	.	does	not	deprive	the	court	of	jurisdiction.”);	cf.	State	v.	Nolan,	150	Me.	355,	

356,	 111	 A.2d	 478,	 479	 (1955)	 (“[T]he	 jurisdiction	 of	 trial	 justices	 depends	

upon	 statutory	 provisions	 and	 cannot	 be	 enlarged	 by	 presumption	 or	 by	

implication,	and	.	.	.	the	facts	which	determine	the	jurisdiction	must	appear	of	

record	 .	 .	 .	 .”	 (quotation	 marks	 omitted)).	 	 We	 therefore	 vacate	 the	 order.5		

Because	the	Department	neither	was	served	nor	appeared	in	this	case,	we	also	



   5	 	 Because	 we	 vacate	 the	 order	 of	 dismissal,	 we	 need	 not	 address	 whether	 the	 court	 erred	 in	

denying	Mutty’s	motion	pursuant	to	M.R.	Civ.	P.	60(b).	
8	

remand	for	the	court	to	act	on	Mutty’s	initial	motion	to	waive	fees	associated	

with	 service	 costs.	 	 Any	 jurisdictional	 defect	 that	 surfaces	 on	 remand	 can	 be	

addressed	by	the	court	in	the	first	instance.	

         The	entry	is:	

                            Judgment	vacated.		Remanded	to	the	trial	court	
                            to	 act	 on	 Mutty’s	 motion	 for	 waiver	 of	 fees	
                            associated	with	service	costs.	
	
	    	      	      	    	      	
	
Daniel	E.	Mutty,	appellant	pro	se	
	
The	Department	of	Corrections	did	not	file	a	brief	
	
	
Kennebec	County	Superior	Court	docket	number	AP-2015-51	
For	Clerk	Reference	Only	
