judicial review action challenging lawfulness of earlier psychological examination mooted when petitioner passed subsequent examination and there was no cognizable claim for monetary relief
How later courts described this case
- judicial review action challenging lawfulness of earlier psychological examination mooted when petitioner passed subsequent examination and there was no cognizable claim for monetary relief
- “It is clear that the only kind [of monetary relief] sought here, tort damages, are not available under ORS 183.486(1)(b).” (Emphasis in original.)
Written by the judges who cited it.
The opinion
DURHAM, J.,
specially concurring.
The trial court correctly granted summary judgment. I agree with the majority’s result, but I disagree with its reasoning.
*426 Petitioner sought a judgment reversing and remanding the proceeding to the Board “with an order to remove the results of the first licensure examination from his file.” He also sought non-economic damages for mental distress, economic damages of $2,540 and reasonable attorney fees. Although he claimed that the first examination was unlawful in many respects, he presented no argument that the Board should be ordered to issue a license to him or to consider him licensed effective after the first examination.
I agree with the majority that his challenge to the procedures and the result of the first test is moot, unless he has a valid claim for damages. He has no such claim. He makes no argument that the Administrative Procedures Act, ORS 183.310 to ORS 183.550, authorizes an award of non-economic damages. The state cites ORS lSS^SGClXb) 1 and argues that “ancillary relief’ does not include non-economic damages. In the absence of any contrary authority or argument by petitioner, I agree. Furthermore, even if “ancillary relief’ includes economic damages, it is not available here. Under the only theory that petitioner identifies, he suffered no economic losses from his inability to practice as a psychologist between the examinations. He held no license until after the second examination and his petition makes no claim that the Board should be ordered to issue a license to him, or to consider him licensed effective after the first examination.
I join in the majority’s result. I do not join in its discussion of the Oregon Tort Claims Act, ORS 30.260 to ORS 30.300, or its suggestion that no kind of tort damages is available under ORS 183.486(1).
ORS 183.486(1)03) provides:
“(1) The reviewing court’s decision under ORS 183.482 or 183.484 may be mandatory, prohibitory, or declaratory in form, and it shall provide whatever relief is appropriate irrespective of the original form of the petition. The court may:
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“(b) Order such ancillary relief as the court finds necessary to redress the effects of official action wrongfully taken or withheld.”