Mooney v. Oregon Health Authority

We long have held that the repeal or replacement of an administrative rule means an ORS 183.400 challenge seeking to invalidate the displaced rule is moot. See Reid v. DCBS, 235 Or App 397, 401, 232 P3d 994 (2010) (so holding); see also Hay v. Dept. of Transportation, 301 Or 129, 133-34, 719 P2d 860 (1986) (expiration of rule mooted ORS 183.400 challenge to the rule).

Respondent, The Oregon Health Authority (OHA) issued a document entitled “Statewide Mask, Face Shield, Face Covering Guidance,” effective July 1, 2020. Petitioners sought to have the guidance invalidated under ORS 183.400 because Petitioners believed the document qualified as an administrative rule. In response, the OHA contended that the proceeding was moot because the guidance has been superseded. The Court stated, "we long have held that the repeal or replacement of an administrative rule means an ORS 183.400 challenge seeking to invalidate the displaced rule is moot." See Reid v. DCBS, 235 Or App 397, 401, 232 P3d 994 (2010) (so holding); see also Hay  v. Dept. of Transportation, 301 Or 129, 133-34, 719 P2d 860 (1986) (expiration of rule mooted ORS 183.400 challenge to the rule). Despite Petitioners’ insistence that “this case was not moot because of pending enforcement proceedings under the now-supplanted guidance,” the Court rejected a similar contention in Reid and did so again here. The Court held that the record contained “no evidence regarding any ongoing enforcement proceedings or how, if at all, it would have a practical effect on these petitioners’ rights to resolve the issues about the validity of the prior guidance.” Petition dismissed.