Souza v. Administration of the Public Employees' Retirement System CA3

No. 533 June 11, 2025 283 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1). IN THE COURT OF APPEALS OF THE STATE OF OREGON Jill BONG, Plaintiff-Appellant, v. OREGON DEPARTMENT OF JUSTICE and Oregon Attorney General, Defendants-Respondents. Douglas County Circuit Court 23CV45434; A185121 Jason R. Thomas, Judge. Submitted May 12, 2025. Jill Bong filed the briefs pro se. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Denise G. Fjordbeck, Assistant Attorney General, filed the brief for respondents. Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce, Judge. AOYAGI, P. J. Affirmed. 284 Bong v. Dept. of Justice AOYAGI, P. J. In March 2023, petitioner filed a federal action that included claims against the former governor of Oregon and the former director of the Oregon Health Authority (OHA) in their individual and official capacities. A senior assistant attorney general (AAG) from the Oregon Department of Justice (DOJ) appeared on behalf of the former governor and the former OHA director in both their individual and official capacities. Petitioner challenged the AAG’s authority to appear for the defendants in their individual capacities. The federal court rejected that challenge. Petitioner then filed this state court action against the Oregon Attorney General and the DOJ, challenging their authority to defend former or current state officials, officers, or employees in their personal capacities in specified circumstances. The circuit court held a stipulated facts trial and ultimately dismissed the case on two grounds: (1) that petitioner lacked standing to object to what lawyer rep- resents her opponents in court, for reasons detailed at length in the court’s letter opinion, and (2) that any complaint about the qualifications or status of another party’s lawyer should be directed to the court in which that lawyer is appearing— here, to the federal court, which had already rejected petition- er’s challenge to the AAG’s representation—rather than being raised in a separate action in a different court. On appeal, petitioner contends that the circuit court erred in dismissing her state court action. In five assign- ments of error, she challenges the court’s ruling, arguing that she has standing, that the court misframed the issue, that the court improperly resurrected a waived claim-splitting defense, that the court’s second basis for dismissal was wrong, and that the court had authority to issue an injunc- tion in this case. The state responds that the circuit court properly dismissed the case, because petitioner met none of the elements of standing, and because the circuit court could not be required to direct proceedings in a federal dis- trict court as petitioner sought. Having reviewed the record and considered the parties’ arguments, we agree with the state that the trial court did not err in dismissing the action. Petitioner failed Nonprecedential Memo Op: 341 Or App 283 (2025) 285 to establish standing, which is dispositive. Accordingly, we affirm. Affirmed.

No. 517 June 4, 2025 175 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1). IN THE COURT OF APPEALS OF THE STATE OF OREGON Kevin J. LEE, Petitioner, v. DEPARTMENT OF CONSUMER AND BUSINESS SERVICES, Respondent. Department of Consumer and Business Services INS190008; A182238 Argued and submitted April 1, 2025. Kevin J. Lee argued the cause and filed the briefs pro se. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jon Zunkel-deCoursey, Assistant Attorney General, filed the brief for respondent. Before Ortega, Presiding Judge, Lagesen, Chief Judge, and Hellman, Judge. HELLMAN, J. Affirmed. 176 Lee v. DCBS HELLMAN, J. Petitioner, appearing pro se, seeks judicial review of a final order of the Department of Consumer and Business Services (DCBS) that revoked his insurance licenses and assessed civil penalties. On judicial review, petitioner argues that the final order is not supported by substantial evidence. We affirm. “We review an agency’s order in a contested case for errors of law, ORS 183.482(8)(a), substantial evidence, ORS 183.482(8)(c), and substantial reason.” Dorn v. Teacher Standards and Practices Comm., 316 Or App 241, 243, 504 P3d 44 (2021). “Substantial evidence exists to support a find- ing of fact when the record, viewed as a whole, would permit a reasonable person to make that finding.” ORS 183.482. “Substantial reason exists where the agency has articulated a rational connection between the facts and the legal conclu- sion that the agency draws from them.” Dorn, 316 Or App at 243 (internal quotation marks omitted). “Our review is restricted to the record.” Id. (citing ORS 183.482(7)); see also ORS 183.417(9) (defining “[t]he record in a contested case”). A detailed recitation of the facts would not benefit the bench, the bar, or the public. Petitioner held securities sales, insurance provider, and insurance consultant licenses in Oregon for several years. In 2017, the Federal Industry Regulatory Authority (FINRA) contacted petitioner to determine if he had violated any federal securities laws when he provided investment advice to his former neigh- bors. In 2018, petitioner filed a resident insurance license renewal application with the state and represented that he had not “been named or involved as a party in an adminis- trative proceeding, including FINRA sanction.” DCBS sub- sequently alleged that petitioner “act[ed] as a state invest- ment adviser in Oregon without a state investment license,” provided “misleading information” on his insurance license applications by not disclosing the FINRA investigation, and that he engaged in “fraudulent, coercive, or dishonest prac- tices.” At the contested hearing, the daughter of petitioner’s former neighbors, petitioner, and a DCBS financial enforce- ment officer testified, and the administrative law judge (ALJ) received into evidence numerous exhibits offered by Nonprecedential Memo Op: 341 Or App 175 (2025) 177 each party. The ALJ ruled in favor of DCBS and issued a proposed order. DCBS adopted the ALJ’s proposed order as the final order. We have reviewed each of petitioner’s 18 separate arguments concerning the final order and conclude that petitioner presents no basis to reverse. Many of petitioner’s arguments dispute DCBS’s interpretation of the facts, but we do not reweigh evidence on appeal. See Gaylord v. DMV, 283 Or App 811, 822, 391 P3d 900 (2017) (“When in a review role, a court does not review for the better evidence.”). Many of petitioner’s arguments also depend on his testimony— which DCBS found not credible—and we do not revisit cred- ibility on appeal. See id. (“A substantial evidence review does not entail or permit the reviewing tribunal to reweigh or to assess the credibility of the evidence that was presented to the fact-finding body.” (Internal quotation marks omitted.)) And petitioner’s arguments do not establish that DCBS committed any legal error in its analysis. In sum, substan- tial evidence supports DBCS’s findings of fact, and the order provides substantial reason for its conclusions. Petitioner has not demonstrated any legal error on DCBS’s part. Affirmed.

No. 568 June 25, 2025 453 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1). IN THE COURT OF APPEALS OF THE STATE OF OREGON KENNETH W. WALTERS, Petitioner, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent. Board of Parole and Post-Prison Supervision A185081 Submitted May 9, 2025. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Stephanie J. Hortsch, Deputy Public Defender, Oregon Public Defense Commission, filed the brief for petitioner. Dan Rayfield, Attorney General, Benjamin Gutman, Solicitor General, and Philip Thoennes, Assistant Attorney General, filed the brief for respondent. Before Lagesen, Chief Judge, and Egan, Judge. EGAN, J. Reversed and remanded. 454 Walters v. Board of Parole EGAN, J. Petitioner seeks judicial review of a final order of the Board of Parole and Post-Prison Supervision (board) that set petitioner’s sex offender notification level at Level 3. We reverse and remand the board’s final order.1 Petitioner acknowledges that he did not argue below that the board erred in failing to consider the time he has been in the community without sexually offending. The state does not contest exhaustion or preservation. We agree with petitioner that relaxing the exhaustion requirement is appropriate under these circumstances. Watson v. Board of Parole, 329 Or App 13, 19-20, 540 P3d 20 (2023). The board concedes that it erred in assessing peti- tioner’s risk of reoffending without considering his offense- free time in the community. We agree with and accept the concession. Under our decisions in Thomsen v. Board of Parole, 333 Or App 703, 554 P3d 308, rev den, 373 Or 81 (2024), and Allen v. Board of Parole, 334 Or App 447, 557 P3d 178, rev den, 373 Or 121 (2024), the board was required to assess petitioner’s risk of reoffense as of the time of the assessment. The appropriate remedy is to reverse and remand to the board for further proceedings. Thomsen, 333 Or App at 717. Reversed and remanded. 1 As authorized by ORS 2.570(2)(b), this matter is determined by a two-judge panel.

ACCEPTED 15-24-00114-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 8/4/2025 5:51 PM No. 15-24-00114-CV CHRISTOPHER A. PRINE CLERK FILED IN IN THE FIFTEENTH COURT OF APPEALS 15th COURT OF APPEALS AUSTIN, TEXAS 8/4/2025 5:51:39 PM CHRISTOPHER A. PRINE CECILE ERWIN YOUNG, IN HER OFFICIAL CAPACITY AS EXECUTIVE Clerk COMMISSIONER OF THE TEXAS HEALTH AND HUMAN SERVICES COMMISSION, MOLINA HEALTHCARE OF TEXAS, INC., AND AETNA BETTER HEALTH OF TEXAS, INC., Appellants, v. COOK CHILDREN’S HEALTH PLAN, TEXAS CHILDREN’S HEALTH PLAN, SUPERIOR HEALTH PLAN, INC., AND WELLPOINT INSURANCE COMPANY Appellees. On Interlocutory Appeal from the 455th Judicial District Court, Travis County Cause No. D-1-GN-24-003839 APPELLEES’ JOINT REPLY IN SUPPORT OF MOTION TO DISMISS APPEALS OF AETNA BETTER HEALTH OF TEXAS, INC. AND MOLINA HEALTHCARE OF TEXAS, INC. FOR LACK OF JURISDICTION AND REQUEST FOR EXPEDITED CONSIDERATION  TABLE OF CONTENTS Index of Authorities ..................................................................................................... 3 Introduction................................................................................................................... 7 Summary of the Reply ................................................................................................. 8 Argument .................................................................................................................... 10 I. Aetna and Molina do not have contracts with HHSC as a result of the challenged procurement, and halting the procurement does not harm the public but rather stabilizes the current program. ..................................... 10 II. Whether Aetna and Molina are proper parties is jurisdictional as to their participation in this appeal. .................................................................... 12 III. Aetna and Molina cannot appeal because they are neither parties in the trial court nor bound by the injunction..................................................... 15 A. Aetna’s and Molina’s attempts to intervene in the trial court are ineffective until Section 51.014(b)’s automatic stay is lifted. ........... 15 B. The Court should reject Molina’s argument that the stay did not apply because its intervention was filed on the same day as the notice of appeal. .................................................................................... 21 C. The trial court did not enjoin Aetna or Molina. .................................. 23 IV. For a non-party, being merely affected or aggrieved by an order does not confer a right to appeal. ............................................................................ 27 V. Aetna and Molina do not satisfy the stringent requirements of virtual representation................................................................................................... 29 VI. The equities do not favor Aetna’s and Molina’s participation. .................... 31 Conclusion .................................................................................................................. 33 Certificate of Service.................................................................................................. 36 Certificate of Compliance .......................................................................................... 37 2  INDEX OF AUTHORITIES Cases Barshop v. Medina Cnty. Underground Water Conservation Dist., 925 S.W.2d 618 (Tex. 1996) ........................................................................... 12, 13 Chambers-Liberty Cntys. Navigation Dist. v. State, 575 S.W.3d 339 (Tex. 2019) .....................................................................13, 14, 33 Ex parte Chambers, 898 S.W.2d 257 (Tex. 1995) ..............

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-25-00230-CV In re Nick Steward ORIGINAL PROCEEDING FROM TRAVIS COUNTY MEMORANDUM OPINION The petition for a writ of mandamus is denied. See Tex. R. App. P. 52.8(a), (d). __________________________________________ Chari L. Kelly, Justice Before Chief Justice Byrne, Justices Kelly and Ellis Filed: June 27, 2025