Wang v. Or. Bd. of Massage Therapists

Docket NumberA176721
Decision Date26 October 2022
Citation322 Or.App. 491,519 P.3d 1281
Parties Minfang WANG, Plaintiff-Appellant Cross-Respondent, v. OREGON BOARD OF MASSAGE THERAPISTS, Defendant-Respondent Cross-Appellant.
CourtOregon Court of Appeals

Thomas R. Benke argued the cause and filed the briefs for appellant-cross-respondent.

Denise G. Fjordbeck, Assistant Attorney General, argued the cause for respondent-cross-appellant. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Stacy M. Chaffin, Assistant Attorney General.

Before Tookey, Presiding Judge, and Egan, Judge, and Kamins, Judge.


The trial court entered a judgment dismissing plaintiff's complaint against the Oregon Board of Massage Therapists (board), which asserted two "claims" for relief stemming from the denial of her application for a license. The first claim arose under the Declaratory Judgment Act; the second "claim" was actually a petition for judicial review challenging an order of the board refusing plaintiff's request to disclose the investigative records that led the board to deny her application for licensure. The trial court dismissed both claims, and plaintiff appeals. The board has filed a cross-appeal, contending that the trial court's disposition on the petition for judicial review was incorrect because, rather than dismissing that "claim," the board's order should simply be affirmed. We affirm the trial court's dismissal of the first claim, because it sought relief that was only available through an administrative proceeding under the Administrative Procedures Act (APA). On the second claim, we agree with the trial court that the board correctly held that the records were exempt from disclosure; but the board is correct that its order should be affirmed. On the cross-appeal, we therefore reverse that portion of the judgment dismissing the petition for judicial review and remand for a judgment affirming the board's order.

We recite the facts as alleged in the complaint in the light most favorable to plaintiff, the nonmoving party. Chang v. Chun , 305 Or App 144, 147, 470 P.3d 410 (2020). In 2019, the board assessed a civil penalty against plaintiff for practicing massage without a license, based on the report of a board investigator. Plaintiff subsequently completed the training requirements needed to qualify for a massage license and applied for a license from the board. The board issued a notice of proposed action denying her application because of the findings of the 2019 investigation. Plaintiff challenged that notice by requesting a contested case hearing. In response, the board sent a letter alerting plaintiff to the fact that "the Contested Case Hearing process generally costs $15,000 to $25,000." Plaintiff responded that she could not afford to pay that amount and asked the board for advice. The board recommended that plaintiff obtain legal advice and described a few options, including withdrawal of the license application so that she would "avoid the contested case hearing process and associated fees and costs that may be assessed to you." Plaintiff withdrew her hearing request. She subsequently made a public records request to the board for the report and materials from the 2019 investigation, which the board denied. She then filed the instant case.

Plaintiff's first claim sought a declaration that "the board does not have the authority to collect *** the board's fees and costs in defending [an] application denial or other disciplinary sanction" and an order that the board reopen plaintiff's case and allow her "to continue her request for hearing contesting the board's denial of her application for licensure." As the trial court recognized, because she could have sought the relief in a contested case proceeding before the board, plaintiff must seek that relief directly from the board rather than the trial court. See Salibello v. Board of Optometry , 276 Or App 363, 367, 367 P.3d 932 (2016) ("A court lacks subject matter jurisdiction under the Uniform Declaratory Judgments Act if some other exclusive remedy exists to address the dispute" and "[w]hen 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."). The reasons for the requirement that a petitioner proceed through the agency process rather than file a civil lawsuit—often called "APA exclusivity""are many, but of greatest importance is a concern that the administrative decision-making process should not be prematurely interrupted, especially where agency expertise will play a large role in any decision on the merits." Bay River v. Envir. Quality Comm. , 26 Or App 717, 721-22, 554 P.2d 620 (1976) (citing McKart v. United States , 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969) ); 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) (recognizing that APA exclusivity serves the same purposes as the exhaustion requirement, because "the APA establishes a comprehensive pattern for the judicial review of administrative decisions" (internal citation omitted)).1

Thus, we agree with the trial court that plaintiff's remedy, if any, was through the administrative process rather than through a declaratory judgment action.

Plaintiff's second "claim" sought judicial review of a board order denying her request for the 2019 investigative report. The board denied the request, because it concluded that the report is confidential and exempt from public disclosure. See ORS 676.165(5) ("Investigatory information obtained by an investigator and the report issued by the investigator shall be exempt from public disclosure."); ORS 676.175(1) ; ORS 687.081(9). Plaintiff argued that disclosure was required under a statute relating to the processing of complaints against health professionals. ORS 676.175(3) provides: "[i]f a health professional regulatory board votes to issue a notice of intent to impose a disciplinary sanction, *** the board shall disclose to the licensee or applicant all information obtained by the board in the investigation of the allegations in the notice." We assume for the sake of this discussion that the board's order denying plaintiff's request to disclose the investigative record was an order in other than a contested case that would be subject to review in the circuit court. ORS 183.484 (providing for judicial review of orders in other than a contested case). Plaintiff contends that she had applied for a license and therefore was an "applicant" entitled to the investigation report about her. The board responds that, because plaintiff withdrew her application for licensure, she was no longer an "applicant" for purposes of the statute. We agree with the board.

A construction of ORS 676.175 confirms that the disclosure requirement applies to a person who is involved in an ongoing disciplinary proceeding at the...

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