Salibello v. Or. Bd. of Optometry

• Decision Date: 03 February 2016
• Docket Number: 130609108,A157157.
• Citation: 276 Or.App. 363,367 P.3d 932
• Parties: Cosmo SALIBELLO, Plaintiff–Respondent, v. OREGON BOARD OF OPTOMETRY, Defendant–Appellant.
• Court: Oregon Court of Appeals

276 Or.App. 363

367 P.3d 932

Cosmo SALIBELLO, Plaintiff–Respondent,

v.OREGON BOARD OF OPTOMETRY, Defendant–Appellant.

130609108

A157157.

Court of Appeals of Oregon.

Argued and Submitted May 28, 2015.

Decided Feb. 3, 2016.

Denise G. Fjordbeck, Assistant Attorney General, argued the cause for appellant. With her on the briefs were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Celia A. Barlow argued the cause and filed the brief for respondent.

Before DUNCAN, Presiding Judge, and LAGESEN, Judge, and FLYNN, Judge.

FLYNN, J.

This appeal arises out of an action under the Uniform Declaratory Judgments Act, ORS 28.010 to 28.160. The trial court required the Oregon Board of Optometry to provide to plaintiff, Cosmo Salibello, a copy of the complaint that prompted a board investigation of Salibello's practices and a copy of the investigation summary that the board prepared after closing the investigation. The board argues that the Oregon Administrative Procedures Act (APA) provides the exclusive process for plaintiff to obtain the judicial intervention he seeks and, thus, the trial court lacked jurisdiction to enter the declaratory judgment. We agree and reverse and remand the judgment for dismissal of Salibello's complaint.

BACKGROUND

The pertinent historical facts are undisputed. Salibello was an optometrist licensed to practice under ORS chapter 683. In 2011, after Salibello sold his optometry practice in preparation for retirement, the board notified Salibello that it was investigating a complaint against him. The board eventually ordered Salibello to appear and answer questions at an "interview with the Board in Executive Session." In anticipation of that interview, Salibello's attorney requested a copy of the board's "investigatory file," and specifically emphasized his need to understand the "nature of the complaint." The board refused to provide any documents to Salibello. In a letter dated April 18, 2012, the board's legal counsel explained that the board had "not yet decided" if Salibello was "facing disciplinary action" and that,

"[p]ursuant to ORS 676.175(3),^{[1 ]} the Board is not obligated for any release of information via discovery until or unless they vote to issue a notice of intent to impose disciplinary sanction against a Licensee."

The board never held the vote to which the letter referred. Instead, the board offered to close its investigation in exchange for Salibello's agreement to convert his license status from "active" to "inactive," with the condition that the board would reactivate the disciplinary case if Salibello ever sought return to "active" status. Salibello accepted the board's proposal, and the minutes from a subsequent public meeting of the board report the terms of that agreement.

Salibello later became aware that the board had disclosed information about its investigation, including his acceptance of "inactive" status, to the person whom Salibello believed to have filed the complaint against him. Salibello's attorney demanded an explanation for the disclosure, emphasizing that the board had refused to provide Salibello a copy of the complaint. The board responded with a letter dated January 24, 2013, which explained that the board minutes and Salibello's agreement to become "inactive" were public records. The letter also explained that the board had sent a summary of its investigation to the complainant and that Salibello was entitled to a copy of that summary:

"Oregon Revised Statute 676.175(2)(b) authorizes the board to disclose to a complainant a written summary of information obtained as part of an investigation of an applicant or licensee resulting from the complaint to the extent the board determines necessary to explain the reasons for the board's decision. An applicant or licensee may review and obtain a copy of any written summary of information disclosed to a complainant by the board after the board has deleted any information that could reasonably be used to identify the complainant."

The letter did not include an actual copy of the summary that the board sent to the complainant but quoted five paragraphs from that summary. The letter concluded, "[A]s we discussed earlier, the Board's investigations file on this case is and remains confidential; the Board would work through legal counsel to quash any subpoena for that information, as it is shielded from disclosure."

Salibello then filed this action under the Uniform Declaratory Judgments Act. He sought a declaration that he is a "licensee" for purposes of the disclosure requirements of ORS 676.175. He also sought an order requiring the board to "fully disclose the correspondence sent to the complainant with complainant's name redacted" and an order requiring the board "to remit a true copy, with complainant's name redacted," of the complaint filed against Salibello.

In cross-motions for summary judgment, Salibello argued that he was entitled to the investigation documents while the board argued that the case should be dismissed because Salibello's "sole and exclusive remedy" for compelling the board to act was to file a petition under the APA. The board also represented that there was no dispute Salibello "is still considered a licensee." The court denied the board's motion, granted Salibello's motion, and entered a judgment declaring:

"1. Plaintiff is a licensee and not a member of the public as that term is used in ORS 676.175(1).

"2. Defendant must provide plaintiff with a true copy of Complaint No. 11–07–01.

"3. Defendant must provide plaintiff with a true copy of the investigative summary it remitted to the complainant regarding [C]omplaint [N]o. 11–07–01."

The board appealed, and this court granted a stay of the judgment pending resolution of the appeal.

ANALYSIS

On appeal, the board renews its argument that the APA provides the exclusive remedy for Salibello to pursue his demands for redacted "true" copies of the complaint and the investigation summary. We agree.

A court lacks subject matter jurisdiction under the Uniform Declaratory Judgments Act if some other exclusive remedy exists to address the dispute. League of Oregon Cities v. State of Oregon, 334 Or. 645, 652, 56 P.3d 892 (2002). When the dispute at issue involves an agency's action, or refusal to act, the review provisions of the APA provide the sole and exclusive means of obtaining judicial review, and an action for declaratory relief is not available. Alto v. State Fire Marshal, 319 Or. 382, 395, 876 P.2d 774 (1994) ; see also Ashland Drilling, Inc. v. Jackson County, 168 Or.App. 624, 630, 4 P.3d 748, rev. den., 331 Or. 429, 26 P.3d 148 (2000) (when a remedy of judicial review exists under the APA, jurisdiction "is exclusively under the APA," and there is no right to relief through the Declaratory Judgments Act).

A. Judicial Review Under the APA

The substance of Salibello's complaint was that, as a "licensee," he was entitled under ORS 676.175 to a redacted "true copy" of the complaint against him, as well as a redacted "true copy" of the investigative summary. The board identifies two provisions of the APA that describe procedures through which Salibello could have obtained judicial review of his right to the requested documents.² The first provision, ORS 183.484, describes the process for obtaining judicial review of agency orders in "other than contested cases," including the process for determining the circuit court in which the petition is to be filed, the time limits for filing, and the scope of the court's review authority. The review process described under ORS 183.484 is available to "any person adversely affected or aggrieved" by a "final" agency order. ORS 183.480 ; Oregon Health Care Assn. v. Health Div., 329 Or. 480, 488, 992 P.2d 434 (1999) (explaining that ORS 183.480(3) limits judicial review under ORS 183.484 to only a "final order").

The second APA provision, ORS 183.490, provides that a "petition as described in ORS 183.484," may be used to "compel an agency to act where it has unlawfully refused to act or make a decision." Review under ORS 183.490 is available when an agency has not issued a "final" order and allows the circuit court to compel an agency to act "with greater alacrity," although not to compel the agency to act in a particular way. Mendieta v. Division of State Lands, 148 Or.App. 586, 598, 941 P.2d 582 (1997), rev. dismissed, 328 Or. 331, 987 P.2d 510 (1999).

B. Review of Salibello's Demand for a Copy of the Complaint

Salibello's claim for a "true copy" of the complaint challenges a board decision that he could have challenged through a petition for judicial review under ORS 183.484. As Salibello emphasizes, he twice requested, and was denied, a copy of the complaint. The board repeatedly advised Salibello that it would not release the complaint to him unless the board voted to proceed with discipline, first in its letter of April 18, 2012, which denied Salibello's request for a copy of the "investigatory file," and then in its letter of January 24, 2013, which reiterated that "the Board's investigations file on this case is and remains confidential."

The board's letter of April 18, 2012, constituted a "final order" within the meaning of the APA, because it embodied the board's final decision regarding disclosure of the complaint during the investigation stage. See ORS 183.310(6)(b) (a final order embodies "final agency action expressed in writing"); Norden v. Water Resources Dept., 329 Or. 641, 643, 996 P.2d 958 (2000) ("[A]gencies may issue orders in contested cases and orders in other than contested cases. In either context, an order is ‘any agency action expressed orally or in writing directed to a named person or named persons * * *.’ " (quoting ORS 183.310(5) (internal citations omitted))). That board decision was a decision in an "other than contested case[,]" and subject to judicial review in the circuit court under ORS 183.484, because no hearing was required. See ORS 183.310(2)(a)(A) (defining "[c]ontested...