Oregon Health Care Ass'n v. Health Division

941 P.2d 593, 148 Or. App. 568, 1997 Ore. App. LEXIS 776

• Court: Court of Appeals of Oregon
• Decided: June 25, 1997
• Docket: CN623; CA A90734
• Status: Published

Opinions

LANDAU, J.

Petitioners Oregon Health Care Association (OHCA) and its member facilities move for a determination that this court has jurisdiction to review orders of respondent Health Division denying motions to quash a subpoena duces tecum issued in a contested case proceeding. Petitioners contend that, because the order challenged on review was issued in a contested case proceeding, jurisdiction lies in this court pursuant to ORS 183.482(1), which confers on the Court of Appeals jurisdiction for “review of contested cases.” Respondent Health Division contends that, because the order was not issued at the conclusion of a contested case, jurisdiction lies in the Marion County Circuit Court pursuant to ORS 183.484(1), which confers on that court jurisdiction for review of “orders other than contested cases.” We grant petitioners’ motion and conclude that this court has jurisdiction to review the challenged Health Division orders.

Providence Medical Center applied for a certificate of need to establish a skilled nursing facility. The Health Division issued the certificate. OHCA sought reconsideration of the issuance of the certificate. The individual member facilities, however, did not appear as petitioners. When the Health Division issued subpoenas duces tecum against the individual members, they moved to quash the subpoenas. After a hearing, the Health Division modified the subpoenas and denied the motions to quash. Petitioners then petitioned for judicial review and filed the motion now before us.

The Oregon Administrative Procedure Act (APA) defines the jurisdiction of the courts to review orders generated in either of two categories of administrative proceedings. First, ORS 183.482(1) provides that

“[jurisdiction for judicial review of contested cases is conferred upon the Court of Appeals.”

The statute then details the procedure by which the jurisdiction of the Court of Appeals may be invoked to review contested cases. ORS 183.482(2) through (8). Second, ORS 183.484(1) provides that jurisdiction for judicial review of all other administrative agency orders, that is, for “orders other than contested cases,” is conferred upon one or more circuit courts. The statute then details the procedure by which the jurisdiction of the circuit courts may be invoked to review orders other than contested cases. ORS 183.484(2) through (5).¹

It bears emphasis that, in both instances, the statutes define the jurisdiction of the courts in terms of categories of cases: contested and noncontested. See, e.g., Hay v. Dept. of Transportation, 301 Or 129, 136, 719 P2d 860 (1986) (describing jurisdiction to review agency orders as depending on whether proceeding is contested or noncontested); Patton v. St. Bd. of Higher Ed., 293 Or 363, 366, 647 P2d 931 (1982) (“[t]he Court of Appeals has jurisdiction if a proceeding meets the definition of a ‘contested case’ under any part of ORS 183.310(2)”); see also generally Barbara J. Safriet, Judicial Review of Government Action: Procedural Quandaries and a Plea for Legislative Reform, 15 Envtl L 217,222 (1985) (jurisdiction under the Oregon APA is “category-dependent”). The statutes do not define the jurisdiction of the courts by reference to the particular types of orders that may be generated within each category of case. To the contrary, the statutes expressly contemplate that a variety of types of orders may be generated in any given proceeding. For example, ORS 183.482 repeatedly refers to jurisdiction to “review a contested case,” not to review a particular type of order within a contested case. See ORS 183.482(1) (“jurisdiction for judicial review of contested cases”); ORS 183.482(5) (“review of a contested case”); ORS 183.482(7) (“[r]eview of a contested case”). The same statute requires that all petitions for judicial review of contested cases “state the nature of the order the petitioner desires reviewed,” expressing the assumption that more than one type of order generated within a contested case is subject to the court’s jurisdiction. ORS 183.482(2). The statutory definition of “contested case” itself confirms that fact. It includes proceedings at which proposed, intermediate or final orders are prepared by an agency or hearings officer. ORS 183.415(ll)(h). In short, nothing in the language of that statute expresses any limitation on the jurisdiction of this court to review only final orders issued at the completion of a contested case.

The APA further defines the types of orders over which the courts may exercise their jurisdiction, whether those orders are generated in a contested or a noncontested case. ORS 183.480(3) provides that, as a general rule, only final orders are subject to judicial review:

“No action or suit shall be maintained as to the validity of any agency order except a final order as provided in this section and ORS 183.482, 183.484, 183.490 and 183.500 sic * * ”²

The same provision then describes two exceptions to that general rule. First, the courts may review something other than a final agency order “upon showing that the agency is proceeding without probable cause.” ORS 183.480(3). Second, the courts may review something other than a final agency order if “the party [petitioning for review] will suffer substantial and irreparable harm if interlocutory relief is not granted.” ORS 183.480(3). That the exceptions to the general rule apply regardless of the category of administrative proceeding is demonstrated by the language of the statute itself; the exception clause immediately follows—as part of the same sentence—the statutory reference to review of cases “as provided in” both ORS 183.482, regarding contested cases, and ORS 183.484, regarding orders other than contested cases.

That is, in fact, the way the statute has been read for many years. In Lane Council Govts v. Emp. Assn., 277 Or 631, 561 P2d 1012 (1977), for example, the Supreme Court reviewed an interlocutory order issued in a contested case that first was reviewed by this court. The Supreme Court ultimately disposed of the case on the ground that the petitioners had failed to satisfy the substantive requirements of ORS 183.480(3) itself, that is, on the grounds that “there was no showing of ‘substantial and irreparable harm’ of the kind and degree necessary to require judicial review of an order under ORS 183.480(3)” and that the agency was not proceeding without “probable cause.” Lane Council Govts, 277 Or at 638. The point remains that the court did entertain the petition and said that, upon the proper showing under ORS 183.480(3), appellate courts are required to review interlocutory orders in contested cases.

We have construed the statute in the same manner. For example, in Shepherd v. OLCC, 81 Or App 201, 724 P2d 901 (1986), the petitioner—itself a state agency—sought interlocutory review of an order of the Employment Relations Board (ERB) in a contested case. Writing for a unanimous court, Judge Buttler explained:

“Until ERB issues a final order * * * judicial review would be premature [under ORS 183.480(1)] unless interlocutory review is authorized under ORS 183.480(3) * *

Id. at 204 (emphasis supplied). In other words, if the petitioner can satisfy the requirements of ORS 183.480(3), we do have authority to review an interlocutory order in a contested case.

There is dictum in a decision of this court that fairly suggests a contrary conclusion. In Bay River v. Envir. Quality Comm., 26 Or App 717, 554 P2d 620 (1976), it was suggested that, if an order

“is at the culmination of a contested case hearing, appeal is to this court; if the order is made in any other context, appeal is to the circuit court.”

Id. at 721. That decision, however, did not involve review of an order that arose during a contested case, and the quoted statement was in no way necessary to the disposition of the issues before the court. To the extent that the dictum in Bay River conflicts with this and prior cases, that dictum must be regarded as incorrect.

From the foregoing, it is apparent that, although we have jurisdiction to review contested cases, and not merely particular types of orders generated within contested cases, the general rule is that we may exercise that jurisdiction only as to final orders entered at the conclusion of a contested case. There are only two exceptions to that general rule, as delineated in ORS 183.480(3): nonfinal orders that cause a petitioner “substantial and irreparable harm” and other agency action “without probable cause.”

Turning to the particulars of this case, we first must determine whether we have jurisdiction to review the type of case before us and, if so, whether the particular order generated within that proceeding is a type that may be reviewed. As to the first question, no one suggests that the certificate of need proceeding in which the subpoenas were issued is not a contested case. Reconsideration of orders granting certificates of need are, in fact, contested case proceedings. “Contested cases” include agency proceedings

“[w]here the agency by rule or order provides for hearings substantially of the character required by ORS 183.415,183.425,183.450,183.460 and 183.470 [describing proceedings].”

ORS 183.310(2)(a)(D). In this case, the agency provides for hearings substantially of the character required by the statutes mentioned in ORS 183.310(2)(a)(D). See generally OAR 333-670-000 through OAR 333-670-280. Moreover, OAR 333-545-020(25) defines Health Division reconsideration hearings, which include certificate of need reconsideration hearings, as “contested case hearing[s] held pursuant to ORS Chapter 183.” Thus, we have jurisdiction to review this case. As to the second question, petitioners have alleged that the subpoenas, if enforced, would cause OHCA and its member facilities “substantial and irreparable harm if interlocutory relief is not granted,” and the Health Division does not dispute that allegation. Accordingly, review of the Health Division’s denial of the motions to quash the subpoenas is properly before this court.

The dissent contends that we err in arriving at this conclusion. It grounds its contentions on two assertions: first, that the APA allows interlocutory review of orders in contested cases only before circuit courts and, second, even if that is not so, that petitioners in this case have failed to establish the substantial harm that is a condition of judicial review of interlocutory orders. We address each of those contentions in turn.

The dissent’s assertion that the APA does not authorize this court to review interlocutory orders in contested cases is defeated by reference to the language of the statute itself:

“No action or suit shall be maintained as to the validity of any agency order except a final order as provided in this section and ORS 183.482 [authorizing the Court of Appeals to review contested cases], * * * or except upon showing that * * * the party will suffer substantial and irreparable harm if interlocutory relief is not granted.”

ORS 183.480(3). The exception for review of interlocutory orders expressly applies to review of contested cases by this court.³

The dissent also complains that allowing this court to review interlocutory orders requires an appellate court to act like a factfinding trial court. That is simply incorrect. As an appellate court, we review on the basis of the record before us, even in the case of petitions to review interlocutory orders. If the record is incomplete, and the parties wish to supplement it, the statutes expressly provide a mechanism for returning the matter to the agency and supplementing the record. ORS 183.482(5).⁴ Or, in the alternative, in the case of “disputed allegations of irregularities in procedure before the agency,” the statutes expressly authorize this court to refer the allegations to a Master, who may take evidence and make findings of fact. ORS 183.482(7).⁵

The dissent’s alternative argument—that, at all events, petitioners in this case will not be substantially harmed—is equally flawed. According to the dissent, because ORS 183.440 provides an alternative remedy, petitioners will not be irreparably harmed as a matter of law. That statute, however, affords no relief to petitioners in this case. It provides that an agency may issue subpoenas to any party to a contested case and gives the agency a remedy if the subpoenaed party refuses or fails to comply:

“If any person fails to comply with any subpoena [issued by an agency in a contested case] * * * the judge of the circuit court of any county, on the application of the agency or of a designated representative of the agency or of the party requesting the issuance of or issuing the subpoena, shall compel obedience by proceedings for contempt as in the case of disobedience of the requirements of a subpoena issued from such court or a refusal to testify therein.”

ORS 183.440(2). In this case, petitioners did not fail to comply with any subpoena, and the Health Division did not initiate a contempt action to compel obedience.

The dissent insists that the remedy would be available if only petitioners would disobey the subpoena and thereby force the Health Division to bring a contempt action under that statute. In support of its assertion, the dissent relies on a case in which we held that a party could seek review of an administrative subpoena either through a writ of prohibition or a contempt proceeding. School Dist. No. 1 v. Nilsen, 7 Or App 396, 490 P2d 1265 (1971), rev’d 262 Or 559, 499 P2d 1309 (1972). The argument merely states the obvious. Of course, a party may refuse to comply with a subpoena and then risk the consequences. It is quite another matter to say that a party wishing in good faith to challenge the validity of an administrative subpoena must disobey it and subject itself to contempt proceedings. We are aware of no statute, rule or case that says that.

We conclude that the APA confers jurisdiction on this court to review the orders challenged in petitioners’ petition for review.

Motion to determine jurisdiction granted; jurisdiction determined to be in the Court of Appeals.

1 Arguably, there is a third category of administrative review concerning an agency’s unlawful refusal to act or make a decision or unreasonably delaying in doing either. The APA authorizes the Court of Appeals to review such agency ¿reaction. ORS 183.490. See Mendieta v. Division of State Lands, 148 Or App 586, 598, 941 P2d 582 (1997) (ORS 183.490 authorizes judicial review of agency inaction).

2 ORS 183.500 provides for appeal to this court of any matter reviewed by the circuit courts.

3 We have considered other possibilities, but we are able to identify no other plausible construction of ORS 183.480(3). We have considered, in particular, the fact that the statute begins with the phrase “[n]o action or suit shall be maintained,” which—at least by itself—could suggest that the prohibition and exceptions that follow it are limited to “actions” or “suits” as opposed to petitions for judicial review. The suggestion fails, however, in the face of the balance of the sentence, which explicitly refers to the “action” or “suit” being maintained “as provided in” ORS 183.482 and ORS 183.484. Clearly, the legislature did not intend “action” or “suit” to mean something different from judicial review, because it expressly defined those words by reference to the judicial review statutes.

4 ORS 183.482(5) provides:

“If, on review of a contested case, before the date set for hearing, application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good and substantial reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon such conditions as the court deems proper. The agency may modify its findings and order by reason of the additional evidence and shall, within a time to be fixed by the court, file with the reviewing court, to become a part of the record, the additional evidence, together with any modifications or new findings or orders, or its certificate that it elects to stand on its original findings and order, as the case may be.”

5 ORS 183.482(7) provides:

“Review of a contested case shall be confined to the record, the court shall not substitute its judgment for that of the agency as to any issue of fact or agency discretion. In the case of disputed allegations of irregularities in procedure before the agency not shown in the record which, if proved, would warrant reversal or remand, the Court of Appeals may refer the allegations to a Master appointed by the court to take evidence and make findings of fact upon them. The court shall remand the order for further agency action if it finds that either the fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure.”