Sulliger v. Lane County

79 P.3d 888, 190 Or. App. 359, 2003 Ore. App. LEXIS 1502
CourtCourt of Appeals of Oregon
DecidedNovember 5, 2003
Docket16-00-08839; A116433
StatusPublished
Cited by4 cases

This text of 79 P.3d 888 (Sulliger v. Lane County) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sulliger v. Lane County, 79 P.3d 888, 190 Or. App. 359, 2003 Ore. App. LEXIS 1502 (Or. Ct. App. 2003).

Opinions

[361]*361EDMONDS, P. J.

Plaintiff is a former employee of defendant. He alleges that defendant was unjustly enriched when it failed to report to the Public Employees Retirement System (PERS) that plaintiff was a police officer, thus reducing the retirement contributions that defendant had to make on his behalf. He seeks to recover the amount of the alleged unjust enrichment. The trial court granted defendant’s ORCP 21 motion to dismiss on the grounds that it did not have jurisdiction over the dispute and that plaintiffs allegations do not bring him within the statutory definition of a police officer that applies to PERS retirement plans. We reverse.

We take the facts from plaintiffs amended complaint, accepting as true all well-pleaded allegations and giving him the benefit of all favorable factual inferences. Granewich v. Harding, 329 Or 47, 51, 985 P2d 788 (1999).1 Plaintiff worked for defendant’s community mental health and developmental disabilities program, in positions that entitled him to PERS coverage, from September 3, 1974 through August 17, 1999. During that period, defendant made payments to PERS on plaintiffs behalf, representing both employee and employer contributions. Plaintiff alleges that, beginning on March 10, 1989, the director of the program authorized plaintiff in writing to exercise police officer powers as authorized by the Lane County Sheriff, which he thereafter began to perform.

Plaintiff further alleges that, under PERS, fully vested employees, whose duties are the regular duties of police officers, are entitled to retire at age 50. Plaintiff reached that age on February 6,1998. On April 21,1999, he notified defendant that he intended to retire; at that time, his employee contributions and accumulated earnings totaled approximately $240,000. Upon plaintiffs retirement, defendant would have been required to match that amount as its contribution to plaintiffs retirement account.2 Plaintiff’s last [362]*362day of work was August 27, 1999. On September 29, defendant notified him that it had not employed him as a peace officer and that he had not been authorized to perform the regular duties of a police officer. Plaintiff alleges that defendant did not disclose those limitations on his duties at any time before his resignation. In October 1999 and March 2000, PERS paid plaintiff the balance of his account as a non-retirement distribution. Plaintiff has received nothing representing defendant’s “money match” share of his retirement pension, and defendant has refused to process his separation as a retirement.

Based on those allegations, plaintiff asserts that defendant has been unjustly enriched in an amount equal to what he should have received from PERS, together with interest, had his retirement been processed as that of a police officer, and that the court should require defendant to disgorge that amount in restitution for the benefits that it received as the result of plaintiffs services.

Plaintiff filed his original complaint in May 2000, after the events that he describes had occurred. In that complaint, he relied on essentially identical factual allegations to state a claim for declaratory relief to require defendant to process his retirement through PERS as the retirement of a police officer. The original complaint also sought alternative supplemental relief that was similar to what plaintiff seeks in his amended complaint. In November 2000, the trial court abated the proceeding and required plaintiff to apply to PERS to exhaust any available administrative remedies before his legal action proceeded. Plaintiff asked PERS about how to pursue a retirement claim and what administrative remedies he would have. In response, PERS stated that, as a result of his withdrawal of his account balance, he had lost all of his membership rights in PERS. It told him that, in order to restore those rights, he would need to be reemployed in a PERS-covered position within five years after he left his employment with defendant. He would also have to repay the amount that he received, together with interest, within a year after his reemployment. It also stated that defendant had not provided any information to PERS that indicated that defendant was employed as a police officer. According to [363]*363PERS, there were no administrative remedies by which defendant could seek to change his status on its records unless he first reestablished his membership.3

After receiving that letter from PERS, plaintiff filed his amended complaint, stating a claim for unjust enrichment. Defendant moved to dismiss the complaint under ORCP 21 A(l) and (8),4 arguing (under ORCP 21 A(l)) that the Public Employees Retirement Board (PERB) had primary jurisdiction over plaintiffs claim for increased retirement benefits and (under ORCP 21 A(8)) that plaintiff had failed to plead adequately that he was a police officer under the pertinent statutes. The trial court granted the motion to dismiss with prejudice without indicating the basis for its ruling. We consider defendant’s arguments in turn.

Primary jurisdiction is a court-created doctrine whose purpose is to guide a court in deciding when to postpone or refrain from exercising its j urisdiction in order to permit an agency to decide a controversy that is within the agency’s jurisdiction. Perla Development Co. v. Pacificorp, 82 Or App 50, 53 n 1, 727 P2d 149 (1986), rev den, 303 Or 74 (1987); see also Boise Cascade Corp. v. Board of Forestry, 325 Or 185, 191-93, 935 P2d 411 (1997); Reinwald v. Dept. of Employment, 148 Or App 75, 81, 939 P2d 86 (1997). The fact that an agency may have primary jurisdiction of a dispute or an issue does not mean that it has exclusive jurisdiction; rather, it means that it is preferable for the agency to act, if it is able to do so, before the court acts. See Boise Cascade Corp., 325 Or at 191 n 8; Lone Oak Racing, Inc. v. Oregon Racing Commission, 162 Or App 111, 119-21, 986 P2d 596 (1999). When an agency has primary jurisdiction over a specific issue but not an entire claim, the court will first permit the agency to exercise its jurisdiction over that issue and will then resolve the rest of the case itself. See Reinwald, 148 Or App at 82-83. Primary jurisdiction thus contrasts with exclusive [364]*364jurisdiction, in which only the agency has authority to resolve the dispute. See Boise Cascade Corp., 325 Or at 191 n 8; Lone Oak Racing, Inc., 162 Or App at 121-22.

ORS 238.655 gives PERB authority, “[i]n order to determine any facts necessary to the administration of the retirement system,” to conduct hearings and to exercise the powers that are necessary to its functions. Under that authority, it may determine whether members of PERS qualify for classification as police officers. See Adams v. PERB, 180 Or App 59, 42 P3d 911 (2002). In this case, however, plaintiff does not seek any benefits from PERS based on the alleged failure to classify him correctly. Rather, he alleges that defendant has been unjustly enriched as the result of the events that he describes and that defendant should pay him the amount of the alleged unjust enrichment. His claim, thus, is against defendant, not against PERS and, therefore, is not within PERB’s exclusive jurisdiction under ORS

Related

Wallace v. STATE EX REL. PERB
263 P.3d 1020 (Court of Appeals of Oregon, 2011)
Sulliger v. Lane County
79 P.3d 888 (Court of Appeals of Oregon, 2003)

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Bluebook (online)
79 P.3d 888, 190 Or. App. 359, 2003 Ore. App. LEXIS 1502, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sulliger-v-lane-county-orctapp-2003.