Murphy v. Oregon Medical Board

No. 912 October 22, 2025 319

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

James Michael MURPHY,

Plaintiff-Appellant,

v.

OREGON MEDICAL BOARD,

an agency of the State of Oregon,

Defendant-Respondent.

Marion County Circuit Court

22CV32195; A181736

Donald D. Abar, Judge.

Argued and submitted January 10, 2025; on appellant’s

motion to file extended memorandum of additional authori-

ties filed January 9, 2025.

James M. Murphy argued the cause and filed the briefs

pro se.

Jona J. Maukonen, Assistant Attorney General, argued

the cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before Shorr, Presiding Judge, Powers, Judge, and Pagán,

Judge.

SHORR, P. J.

Motion to file extended memorandum of additional

authorities denied; affirmed.

320 Murphy v. Oregon Medical Board

Cite as 344 Or App 319 (2025) 321

SHORR, P. J.

Plaintiff appeals from a general judgment that dis-

missed his complaint for declaratory and injunctive relief

against defendant Oregon Medical Board (board). Plaintiff’s

complaint sought a declaration that the board’s prior final

order that revoked plaintiff’s medical license was “null and

void.” Plaintiff also asked the court to compel the board to

provide him a new hearing on his license revocation and

reinstate his prior license pending the outcome of that hear-

ing. Following the board’s motion to dismiss, the trial court

dismissed the complaint, concluding that we, the court of

appeals, had exclusive jurisdiction to consider challenges

to final orders in contested cases under ORS 183.482(1).

Plaintiff appeals, arguing that the trial court erred in dis-

missing the case and later denying his motion to amend his

complaint. We conclude that the court did not err in either

respect. As a result, we affirm.

We begin with a summary of the facts alleged in the

complaint, which the trial court properly accepted as true for

the purpose of the board’s motion to dismiss. See Tomlinson

v. Metropolitan Pediatrics, LLC, 362 Or 431, 434-35, 412

P3d 133 (2018) (accepting the facts as alleged on review of

a grant of a motion to dismiss). Plaintiff was employed as

a physician for the Oregon Air National Guard when he

was accused by a female staff sergeant of performing an

improper or unnecessary Pap smear and genital examina-

tion as part of her periodic health assessment. Among other

things, plaintiff denied the allegation, asserted that he had

not performed a Pap smear or genital examination for many

years and then only with a female assistant present, pointed

out inconsistencies between the sergeant’s allegations and

the written medical records, asserted that he took and

passed a polygraph examination, and claimed to have been

effectively exonerated by the decisions of state and federal

authorities not to pursue criminal charges or further inves-

tigations. Plaintiff was initially discharged from the mili-

tary with an “Other than Honorable Discharge,” but that

was later upgraded to “Honorable Discharge.”

According to plaintiff, the board, allegedly without

performing an investigation of its own, issued a complaint

322 Murphy v. Oregon Medical Board

and notice of disciplinary action against plaintiff relating to

his Oregon medical license. Plaintiff alleged that the board’s

action was based on the allegations by the staff sergeant.

Plaintiff represented himself and the matter proceeded to a

hearing before administrative law judge (ALJ) Bignon, who

then took the matter under advisement. While the matter

was under advisement, Bignon became unavailable. ALJ

Mann then took over the matter despite plaintiff’s objection.

Plaintiff sought a new hearing and requested a new ALJ.

ALJ Mann denied the request for a new ALJ as untimely

under OAR 471-060-0005. ALJ Mann issued a proposed order

and, following plaintiff’s exceptions to that order, ultimately

issued a final order. The final order found that, although the

evidence did not establish that plaintiff performed an unau-

thorized Pap smear, his conduct when responding to the

allegations had been unprofessional, and he had breached

patient confidentiality. The final order revoked plaintiff’s

medical license and issued a substantial fine.

We turn to some of the subsequent procedural facts,

which include procedural facts arising out of a prior pro-

ceeding before us and the Supreme Court. After the board

revoked his license, plaintiff sought review of the final order

in our court. Among other arguments, plaintiff contended

that the board had acted unfairly and in violation of its pro-

cedural rules when the board denied his request for a new

ALJ as untimely under OAR 471-060-0005. In March 2021,

following briefing, we affirmed the board’s order without

opinion. Murphy v. Oregon Medical Board, 309 Or App 596,

481 P3d 313, rev den, 368 Or 637 (2021).

In the meantime, in July 2020, while plaintiff’s

request for judicial review was before us, the Oregon

Supreme Court decided Pulito v. Board of Nursing, 366 Or

612, 468 P3d 401 (2020). Pulito concluded that OAR 471-

060-0005, the same rule at issue in plaintiff’s administra-

tive matter, was an invalid administrative rule. Id. at 624.

The court concluded that the rule exceeded the scope of its

authorizing statute, ORS 183.645, because the rule failed

to include discernable time periods for parties to request a

change from the assigned administrative law judge. Id. at

624-25.

Cite as 344 Or App 319 (2025) 323

Plaintiff cited Pulito to us when seeking recon-

sideration of our decision to affirm the board’s order with-

out opinion. He argued that, under Pulito, ALJ Mann was

required to grant him a different ALJ for a new hearing,

and he noted that OAR 471-060-0005 was now invalid. We

denied plaintiff’s request for reconsideration. Plaintiff then

sought review before the Oregon Supreme Court, relying in

part on Pulito. The Supreme Court denied review. Murphy v.

Oregon Medical Board, 368 Or 637, 496 P3d 630 (2021).

That brings us directly to the new case before us.

After pursuing all options for review of the board’s order

revoking his license, plaintiff sued the board, seeking a dec-

laration from the circuit court that the board’s order was

void and asking for injunctive relief, including requiring a

new hearing and reinstating his license pending the out-

come of that new hearing. As noted, the trial court granted

the board’s motion to dismiss the complaint, concluding that

plaintiff’s complaint was a collateral attack on a final order

in a contested case, and that, under ORS 183.482(1) of the

Administrative Procedures Act (APA), we have exclusive

jurisdiction to review final orders in contested cases.

After entry of judgment, plaintiff filed a motion for

leave to amend his complaint, arguing, among other things,

that (1) he was entitled to amendment; (2) the trial court

erred in dismissing the complaint in light of Pulito, which

rendered any final order by the ALJ “void;” and (3) he had

new and compelling evidence about the ALJ who ultimately

decided his administrative matter.1 The court denied the

motion as untimely because it was filed after entry of the

judgment.

Plaintiff raises at least four assignments of error,

some of which are more properly denominated as arguments

and are not true assignments to either the trial court’s rul-

ings or findings. See ORAP 5.45(3) (stating that each assign-

ment of error must be to a legal, procedural, factual or other

ruling that is being challenged). We understand plaintiff

to properly raise two assignments of error to rulings of the

1

Plaintiff noted that ALJ Mann had pleaded guilty to felony counts of

encouraging child sexual abuse in an unrelated matter and had been removed as

an administrative law judge.

324 Murphy v. Oregon Medical Board

court. Plaintiff contends that the trial court erred in dis-

missing the complaint and in denying his motion to amend

the complaint.

Plaintiff first contends that the trial court erred in

dismissing the complaint. As noted, the trial court ruled that

we have exclusive jurisdiction to review challenges to final

orders in contested cases. ORS 183.482(1) provides, in rele-

vant part, that “[j]urisdiction for judicial review of contested

cases is conferred upon the Court of Appeals. Proceedings

for review shall be instituted by filing a petition in the Court

of Appeals.” The statute goes on to provide the procedures

for seeking judicial review in a contested case and our role

on review. ORS 183.482. Significantly, we addressed the

same issue that plaintiff raises here in Salibello v. Board of

Optometry, 276 Or App 363, 367 P3d 932 (2016). There, as

here, the plaintiff sought a declaration from the trial court

regarding his rights and status in a dispute with an admin-

istrative agency and further requested an injunction requir-

ing the agency to provide him with certain documents. Id.

at 366-67. We concluded that the trial court erred in issuing

the declaration and ordering production of the documents

because the agency’s decision was subject to judicial review,

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.”

Id. at 367; see also Ashland Drilling, Inc. v. Jackson County,

168 Or App 624, 629, 4 P3d 748, rev den, 331 Or 429 (2000)

(stating that “[w]e have held that when APA review is avail-

able, APA jurisdiction is exclusive” (internal quotation

marks omitted)); Lake County v. State of Oregon, 142 Or App

162, 165, 920 P2d 1115 (1996) (stating that “numerous deci-

sions of this court make clear that judicial review of final

agency orders shall be solely as provided in the APA”).

Plaintiff argues that he should be entitled to bring

a separate declaratory judgment action, regardless of our

exclusive jurisdiction, because the Supreme Court’s deci-

sion in Pulito somehow rendered the board’s final order here

“void,” and, as a result, there was no final order for us to have

Cite as 344 Or App 319 (2025) 325

exclusive jurisdiction to review. Therefore, he contends that

he is entitled to bring this separate collateral action. But

plaintiff had the opportunity in his original administrative

proceeding to raise his arguments challenging the board’s

rules and processes. He also had the opportunity to seek,

and did seek, judicial review of the board’s final order apply-

ing those rules. Indeed, he raised Pulito on reconsideration

to us and to the Supreme Court in his petition for review of

the board’s final order. The final order was then affirmed

and not reversed, vacated, or otherwise rendered “void.”

Plaintiff next argues that our decision in Harmon

v. Oregon Medical Board, 319 Or App 488, 510 P3d 949

(2022) permits this collateral declaratory judgment and

injunction action. But Harmon does not support plaintiff’s

argument. In Harmon, the trial court issued the plaintiff

an order enjoining the Oregon Medical Board from issuing

a proposed emergency order. Id. at 490. The board appealed,

arguing that the trial court lacked jurisdiction to enjoin the

agency action. Id. But after the board’s appeal, the parties

agreed to a stipulated order that resolved most of the dis-

puted issues. Id. We concluded that the board’s appeal and

the plaintiff’s related cross-assignment of error were moot.

Id. We never reached the merits of any argument regarding

the trial court’s authority to issue a declaration and injunc-

tion.2 Harmon does not apply here.

For those reasons, we conclude that the trial court

did not err in concluding that it lacked jurisdiction to review

plaintiff’s request for a declaratory judgment and injunc-

tion that would have the effect of overruling an agency final

order that had already been subject to our exclusive judicial

review.

Plaintiff next assigns error to the trial court’s

decision to deny him, post-judgment, leave to amend his

2

Further, the issue that we did not reach in Harmon involved a potential

injunction against the agency’s nonfinal order that was not subject to judicial

review and not, as here, a final order that has already been subject to review. See

Oregon Health Care Assn. v. Health Div., 329 Or 480, 492-94, 992 P2d 434 (1999)

(noting a limited exception under ORS 183.480(3) for a preliminary injunction

in the circuit court over certain nonfinal orders where the agency is proceeding

without probable cause and the opposing party will suffer substantial and irrep-

arable harm if relief is not granted).

326 Murphy v. Oregon Medical Board

complaint. We reject this assignment without extended

explanation. A trial court does not abuse its discretion in

denying a motion to amend the complaint if such an amend-

ment would be futile. Clark v. University of Oregon, 319 Or

App 712, 722-24, 512 P3d 457, rev den, 370 Or 471 (2022). In

moving to amend, plaintiff made arguments that effectively

sought reconsideration by rearguing, among other things,

that the board’s order had not been final because Pulito ren-

dered the order void. He also contended that there were new

allegations relating to recent facts concerning ALJs Mann

and Bignon. But plaintiff did not identify how his amended

complaint added allegations that avoided the jurisdictional

issues present in his original complaint. The trial court

did not abuse its discretion in denying plaintiff’s motion to

amend as any amendment in these circumstances would

have been futile.

In sum, we conclude that the trial court did not err

in either of the ways asserted by plaintiff. As a result, we

affirm.3

Motion to file extended memorandum of additional

authorities denied; affirmed.

3

Finally, we note that plaintiff has moved to file an extended memorandum

of additional authorities under ORAP 5.85. We deny that motion. The materials

submitted with the memorandum are not legal authorities but appear to be a

declaration and other factual material that is not properly filed as an additional

legal authority.