Free Oregon, Inc. v. Oregon Health Authority ( 2023 )

460 December 13, 2023 No. 649
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
FREE OREGON, INC.
and Mandate Free Oregon, Inc.,
Oregon non-profit corporations;
Doctors for Freedom,
an unincorporated association;
Health Freedom Defense Fund;
and Tamara Dimmick; Rasa Sidagyte; Michelle Davis;
Lisa Nave; Charlotte Persinger; Chrystal Gervais;
Aaron Harris; Roy McGrath; Glenn Campbell;
Jessica Cox; Brittany Wilson; Joshua Williams;
and Molly Valdez, individuals,
Petitioners,
v.
OREGON HEALTH AUTHORITY,
Respondent.
Oregon Health Authority
A176977
Argued and submitted December 2, 2022; on respondent’s
motion to dismiss as moot filed July 5, 2023; and petitioners’
response to motion to dismiss as moot filed July 12, 2023.
Tyler D. Smith argued the cause for petitioners. Also on
the briefs were Yasha Renner and Tyler Smith & Associates,
P.C.
Philip Thoennes, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Aoyagi, Presiding Judge, and Lagesen, Chief
Judge, and Jacquot, Judge.*
______________
* Jacquot, J., vice James, J. pro tempore.
Cite as 329 Or App 460 (2023) 461
LAGESEN, C. J.
Motion to dismiss as moot denied; former OAR 333-019-
1010 (Jan 31, 2022) and former OAR 333-019-1030 (Jan 28,
2022) held valid.
462 Free Oregon, Inc. v. Oregon Health Authority
LAGESEN, C. J.
This is a rule challenge under ORS 183.400.
Petitioners seek judicial review of former OAR 333-019-1010
(Jan 31, 2022) and former OAR 333-019-1030 (Jan 28, 2022),1
rules adopted by the Oregon Health Authority (OHA) that
imposed COVID-19 vaccination requirements on providers
and staff in healthcare settings, and on teachers and staff
in school settings, respectively. The rules have since been
repealed. Petitioners argue that OHA exceeded its statutory
authority by adopting those rules and, furthermore, that
the rules are preempted by federal law, violate the principle
of separation of powers, violate due process requirements,
and violate the Contract Clause of the Oregon Constitution.
OHA responds that the repeal of the rules renders this pro-
ceeding moot and that all of petitioners’ challenges fail. For
the reasons that follow, we conclude that (1) OHA has not
demonstrated that this proceeding is moot; and (2) petition-
ers’ arguments do not present grounds for invalidating the
rules. Accordingly, we hold the rules valid.
I. BACKGROUND
OHA first adopted OAR 333-019-1010 and OAR
333-019-1030 as temporary rules in 2021, then as perma-
nent rules in 2022.2 Identifying the statutory source of its
authority to adopt both rules, OHA listed ORS 413.042, ORS
431A.010, and ORS 431.110, statutes which pertain specif-
ically to OHA, and ORS 433.004, which pertains to public
health and safety more generally.3
Relevant to petitioners’ challenges, subsection 3 of
both OAR 333-019-1010 and OAR 333-019-1030 instructed
1
When this case began, the rules at issue had been promulgated as tempo-
rary rules. When OHA promulgated permanent rules, the court permitted peti-
tioners to amend their petition for judicial review to challenge the permanent
rules. This opinion addresses the permanent rules.
2
OAR 333-019-1010 was in effect as a temporary rule from August 5, 2021,
until January 31, 2022. OAR 333-019-1030 was in effect as a temporary rule from
August 25, 2021, until January 28, 2022. Both rules were adopted as permanent
in January 2022, temporarily suspended in May 2023, and repealed in June 2023.
3
For OAR 333-019-1010, OHA also cited ORS 426.415, ORS 443.085, ORS
443.315, ORS 443.450, ORS 443.745, ORS 443.790, ORS 443.860, and ORS
441.025, which pertain to healthcare licensing and facility rules. Consideration
of those statutes as sources of authority is not necessary to resolve this matter.
Cite as 329 Or App 460 (2023) 463
schools and healthcare facilities that they “may not employ,
contract with, or accept the volunteer services of” individuals
unless they “are fully vaccinated against COVID-19 or have
an approved or accepted medical or religious exception.” The
rules also required those individuals to provide proof of vac-
cination or documentation of a medical or religious excep-
tion to their respective school or healthcare facility and set
forth the standards applicable to the required documenta-
tion. OAR 333-019-1010(6) and OAR 333-019-1030(10). The
rules further explained that employers of school and health-
care facility employees were responsible for “tak[ing] rea-
sonable steps to ensure that unvaccinated” individuals with
exceptions to the vaccination requirement “are protected
from contracting and spreading COVID-19.” OAR 333-019-
1010(4); OAR 333-019-1030(4), (6). Additionally, each rule
provided that employers “who violate any provision of this
rule are subject to civil penalties of $500 per day per viola-
tion.” OAR 333-019-1010(7); OAR 333-019-1030(11).
Petitioners assert that those rules are invalid on
several distinct grounds. They first argue that the statutes
cited by OHA as authority for the promulgation of the two
rules do not grant such authority. Next, petitioners contend
that the rules conflict with two other statutes: ORS 431.180
and ORS 433.416. Petitioners then assert that the rules are
preempted by section 564 of the Food, Drug, and Cosmetic
Act (FDCA), codified at 21 USC § 360bbb-3.4 Petitioners fur-
ther argue that the rules offend separation-of-powers prin-
ciples. Petitioners also contend that the rules violate the
Due Process Clause of the Fourteenth Amendment to the
United States Constitution by threatening public employ-
ees’ protected property interest in continued employment
by “mandat[ing] a predetermined outcome without any
right to a hearing.” Finally, petitioners argue that the rules
impermissibly impair employment contracts, in violation of
the Contract Clause of Article I, section 21, of the Oregon
Constitution. For the reasons that follow, we reject each of
petitioners’ challenges and hold former OAR 333-019-1010
and former OAR 333-019-1030 valid.
4
For the sake of readability, except where citing to specific sections of the
statute, we refer to 21 USC § 360bbb-3 as “section 564” throughout this opinion.
464 Free Oregon, Inc. v. Oregon Health Authority
II. MOOTNESS
Because the challenged rules have been repealed,
we must first consider whether this proceeding is moot.
“Whether a case has become moot will depend on
a factual determination regarding the potential impact of
the court’s decision on the parties.” Garges v. Premo, 362 Or
797, 802, 421 P3d 345 (2018). If the party arguing against
mootness “can identify ‘practical effects or collateral conse-
quences’ ” that flow from the outcome of their case, then the
burden shifts to the party advocating mootness to show that
the effects and consequences identified are either “ ‘legally
insufficient or factually incorrect.’ ” Id. (quoting Dept. of
Human Services v. A. B., 362 Or 412, 426, 412 P3d 1169
(2018)). “[I]n order to prevent a case from being considered
moot, a ‘collateral consequence’ must be something beyond
mere speculation. As we have observed, a collateral conse-
quence must have a significant probability of actually occur-
ring; a speculative or merely possible effect is not enough.”
Johnson v. Premo, 302 Or App 578, 592, 461 P3d 985 (2020)
(internal quotation marks and citation omitted).
OHA argues that petitioners’ challenge to OAR 333-
019-1010 and OAR 333-019-1030 is moot because both rules
were first suspended by temporary administrative order,
then ultimately repealed by permanent order. Petitioners
argue that the challenge is not moot “because a legal deter-
mination invalidating the rules would create binding prece-
dent” that would affect prospective future litigation and one
currently pending lawsuit.
OHA is correct that the repeal of rules ordinarily
renders a rule challenge moot. See, e.g., Mooney v. Oregon
Health Authority, 314 Or App 809, 811, 500 P3d 79 (2021)
(“We long have held that the repeal or replacement of an
administrative rule means an ORS 183.400 challenge seek-
ing to invalidate the displaced rule is moot.”). However, in
this instance, petitioner Cox asserts that a determination
of the validity of the rules would affect an ongoing proceed-
ing, in which petitioner challenges her employer’s decision
to place her on unpaid leave based on her failure to obtain a
vaccination or exemption as required by OAR 333-019-1030.
Cite as 329 Or App 460 (2023) 465
OHA has not controverted petitioners’ assertion that a deci-
sion by this court holding the challenged rules invalid could
affect petitioner Cox’s pending lawsuit.5 Under the burden-
shifting framework provided by the Supreme Court in
Garges, 362 Or at 802, it was OHA’s burden to disprove those
consequences once identified, and OHA did not attempt to do
so. Accordingly, OHA has not met its burden to show moot-
ness, at least with respect to OAR 333-019-1030. Because
the arguments with respect to the two rules are identical,
such that dismissing the petition with respect to OAR 333-
019-1010 would have no practical effect on our resolution of
them, we proceed to consider those arguments.
III. ANALYSIS
To start, we observe that the scope of our review
under ORS 183.400 is limited. “[I]n reviewing a rule chal-
lenge under [ORS 183.400], we may declare the rule invalid
only if we conclude that it violates constitutional provisions,
exceeds the statutory authority of the agency that adopted
the rule, or was adopted without complying with rulemak-
ing procedures.” BP West Coast Products, LLP v. Dept. of
Justice, 284 Or App 723, 725-26, 396 P3d 244, rev den, 361
Or 800 (2017) (internal quotation marks omitted). Where a
claim is that a rule exceeds an agency’s statutory author-
ity or violates a constitutional provision, “[j]udicial review
is limited under ORS 183.400 to the face of the rule and the
law pertinent to it.” Wolf v. Oregon Lottery Commission, 344
Or 345, 355, 182 P3d 180 (2008). This means that if the res-
olution of a particular constitutional or statutory challenge
to a rule would require the development of a factual record,
the challenge cannot be resolved in a proceeding under
ORS 183.400. Smith v. Dept. of Corrections, 219 Or App 192,
5
Petitioners’ claim that our decision will impact prospective litigation is not
sufficient to carry their initial burden of identifying “practical effects or collat-
eral consequences” that flow from the outcome of their rule challenge. See, e.g.,
Joint Council of Teamsters #37 v. BOLI, 168 Or App 398, 413, 11 P3d 247, rev den,
331 Or 429 (2000) (“The mere possibility that our invalidation of [an order] might
have the practical effect of informing another court’s consideration of the validity
of [that order] in a future action that petitioners could file, but have not filed—
and may never file—is not ‘effectual relief’ for purposes of mootness.”) (empha-
sis in original); Johnson, 302 Or App at 592 (“[A] speculative or merely possible
effect is not enough.”). As explained above, however, the likelihood of this decision
affecting current litigation is sufficient.
466 Free Oregon, Inc. v. Oregon Health Authority
197-98, 182 P3d 250 (2008), rev den, 345 Or 690, cert den,
557 US 923 (2009).
Petitioners argue that two of the three grounds for
invalidating rules are present here: that they violate con-
stitutional provisions and that they exceed OHA’s statu-
tory authority. “Constitutional issues should not be decided
when there is an adequate statutory basis for decision,” so
we begin with the statutory arguments. Douglas County v.
Briggs, 286 Or 151, 156, 593 P2d 1115 (1979).
A. OHA did not exceed its statutory authority.
As mentioned, in a proceeding under ORS 183.400
to determine whether a challenged rule exceeds an agen-
cy’s statutory authority, “we may consider only the ‘wording
of the rule itself (read in context) and the statutory provi-
sions authorizing the rule.’ ” Assn. of Acupuncture v. Bd. of
Chiropractic Examiners, 260 Or App 676, 678, 320 P3d 575
(2014) (quoting Wolf, 344 Or at 355). Based on those sources,
we determine whether the adoption of the rule exceeded the
adopting agency’s statutory authority by examining whether
the agency “ ‘departed from a legal standard expressed or
implied in the particular law being administered, or contra-
vened some other applicable statute.’ ” Id. (quoting Planned
Parenthood Assn. v. Dept. of Human Res., 297 Or 562, 565,
687 P2d 785 (1984)). To make that determination, we ascer-
tain the legislature’s intent by examining the text, context,
and pertinent legislative history of the relevant statutes.
Id.; State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009).
Petitioners contend that the statutes cited by OHA
as authority for the challenged rules did not provide the nec-
essary authority, that the rules contravened ORS 431.180
and ORS 433.416, and that the rules are preempted by fed-
eral law because they contravene 21 USC § 360bbb-3. We
address each argument in turn.
1. OHA had statutory authority to adopt the rules.
As explained above, OHA cited ORS 413.042, ORS
431A.010, ORS 431.110, and ORS 433.004 as authority for
its adoption of OAR 333-019-1010 and OAR 333-019-1030.
Our analysis begins and ends with ORS 413.042 and ORS
Cite as 329 Or App 460 (2023) 467
431.110 because those two statutes provided OHA with suf-
ficient authority to adopt both rules.
ORS 413.042 provides, “In accordance with applica-
ble provisions of ORS chapter 183, the Director of the Oregon
Health Authority may adopt rules necessary for the admin-
istration of the laws that the Oregon Health Authority is
charged with administering.” That text, we have explained,
unequivocally gives “OHA broad rulemaking authority to
carry out the statutes it is charged with administering.”
Adamson v. Oregon Health Authority, 289 Or App 501, 502,
505, 412 P3d 1193 (2017). ORS 413.110 is one of the statutes
that OHA is charged with administering. It directs, among
other things, that OHA shall:
“(1) Have direct supervision of all matters relating
to the preservation of life and health of the people of this
state.
“* * * * *
“(7) Have full power in the control of all communicable
diseases.”
Those provisions unambiguously grant OHA the
authority to promulgate the challenged rules. Put simply,
the legislature granted OHA “full power” to control com-
municable diseases, and to promulgate rules necessary for
doing so. On their face, the challenged rules are rules aimed
at controlling the communicable disease of COVID-19. OHA,
therefore, had the authority to promulgate them.
Petitioners’ main argument to the contrary is that
the statutes do not specifically refer to vaccinations or other-
wise specifically grant OHA the authority to promulgate
rules related to vaccines. In petitioners’ view, the failure
to specifically identify vaccines in the authorizing statutes
supports the inference that the legislature did not intend
to allow OHA to fulfill its obligation to control communica-
ble diseases by promulgating vaccine rules. Had the legisla-
ture identified specific measures available to OHA to control
communicable diseases but omitted a reference to vaccines,
that argument might have some force. Instead, though, the
legislature opted to grant OHA “full power in the control
468 Free Oregon, Inc. v. Oregon Health Authority
of communicable diseases,” without restricting the methods
available to OHA.
Beyond that, vaccines long have played a role in con-
trolling communicable diseases in the United States and, in
addition, it has long been recognized that states have the
police-power authority to impose vaccine requirements when
health officials determine such requirements are necessary
to protect the public health or public safety. See Jacobson
v. Massachusetts, 197 US 11, 25-39, 25 S Ct 358, 49 L Ed
643 (1905) (discussing states’ police-power authority to con-
trol disease, including controlling smallpox through vaccine
requirements). In view of that history, had the legislature
intended to prohibit OHA from employing that common tool
in discharging its mission to control communicable diseases,
we think the legislature most likely would have made that
intended limitation explicit. The fact that the statutes gov-
erning OHA contain no such restriction further weighs in
favor of the conclusion that the legislature intended to grant
OHA broad authority to adopt rules aimed at controlling
communicable diseases, including rules requiring vaccines.
“It is not our role to add limitations that the legislature itself
did not include.” PGE v. Alfalfa Solar I, LLC, 323 Or App
531, 537, 524 P3d 124, rev den, 371 Or 308 (2023) (citing ORS
174.010). We therefore reject petitioners’ contrary argument.
2. The rules on their face do not conflict with
ORS 431.180.
Petitioners next assert that OHA exceeded its stat-
utory authority in adopting the rules because, in their view,
the rules conflict with ORS 431.180. That statute provides:
“(1) Nothing in ORS 431.001 to 431.550 and 431.990 or
any other public health law of this state shall be construed
as authorizing the Oregon Health Authority or its repre-
sentatives, or any local public health authority or its repre-
sentatives, to interfere in any manner with an individual’s
right to select the physician, physician assistant, naturo-
pathic physician or nurse practitioner of the individual’s
choice or the individual’s choice of mode of treatment, nor
as interfering with the practice of a person whose religion
treats or administers sick or suffering people by purely
spiritual means.
Cite as 329 Or App 460 (2023) 469
“(2) This section does not apply to the laws of this state
imposing sanitary requirements or rules adopted under
the laws of this state imposing sanitary requirements.”
Petitioners assert that, because “the legislature has
expressly withdrawn certain subjects from the [OHA’s] pur-
view, namely, an individual’s private healthcare choices,”
the challenged rules, which institute vaccine requirements
for certain individuals in school and healthcare settings,
are “in derogation of ORS 431.180(1) and thus exceed OHA’s
statutory authority.” In petitioners’ view, the rules “inter-
fere” with the “personal healthcare choices” of healthcare
facility and school staff, which the legislature explicitly
prohibits under ORS 431.180(1). Petitioners further assert
that the rules do not constitute “sanitary regulations” under
ORS 431.180(2). After pointing to dictionary definitions of
the words “sanitary” and “sanitation” and to other examples
of sanitary regulations, petitioners assert that “[i]t should
be obvious that such medical mandates [as the challenged
rules] do not qualify as sanitary requirements.”
In response, OHA points out that the rules do not
require any individual to obtain a vaccine or otherwise
choose a particular form of treatment. Rather, the rules,
by their terms, condition the ability to work in a particular
setting on a person having obtained a vaccine, or having
obtained a medical or religious exemption. OAR 333-019-
1010(3); OAR 333-019-1030(3). OHA reasons that because
individuals remain free to choose whether to have a vac-
cine under the terms of the rules, the rules themselves
do not “interfere” with individuals’ ability to choose their
preferred mode of treatment for purposes of ORS 431.180.
Alternatively, OHA asserts that the rules constitute “san-
itary requirements” for purposes of ORS 431.180(2), when
the word “sanitary” is properly understood in the way the
legislature that originally enacted ORS 431.180 would have
understood the word. For the reasons that follow, we agree
with OHA.
The parties’ dispute centers on the meaning of the
terms “interfere” and “sanitary” in ORS 431.180. To resolve
the dispute, we consider those terms in context, along with
any relevant legislative history. State v. C. P., 371 Or 512,
470 Free Oregon, Inc. v. Oregon Health Authority
517, ___ P3d ____ (2023). “In applying that methodology, we
attempt to discern the intent of the legislature that enacted
the statute.” Id.In this case, as the parties recognize, the legisla-
ture that enacted what is now ORS 431.180 is the 1919 leg-
islature. Or Laws 1919, ch 265, § 151. When the legislature
adopted the Oregon Revised Statutes in 1953, following
the statutory cleanup conducted by the statutory revisions
counsel, it codified that prior law at ORS 431.180, see ORS
431.180 (1953), where it has remained ever since. Although
it has been amended on occasion, none of the amendments
indicate an intention to change the meaning of the statute
as enacted in 1919. In particular, the key terms at issue
have been a part of the statute since 1919. Accordingly, we
examine text and context with the objective of assessing the
intention of the 1919 legislature.6
As originally enacted, what is now ORS 431.180
provided:
“Nothing in this act shall be construed to empower or
authorize the state board of health * * * to interfere in any
manner with the individual’s right to select the physician
or mode of treatment of his choice * * *; providing, however,
that sanitary laws, rules and regulations are complied
with.”
Or Laws 1919, ch 265, § 151.7 At that time, “interfere” com-
monly meant “[t]o enter into, or take a part in, the concerns
of others; to intermeddle; interpose; intervene,” much as it
does today. Webster’s New Int’l Dictionary 1125-26 (1st ed
1910); Webster’s Third New Int’l Dictionary 1178 (unabridged
ed 2002) (defining “interfere” pertinently as “to enter into or
take part in the concerns of others : intermeddle, interpose,
intervene”). “Sanitary,” at the time, generally referred to
6
In this instance, there is no legislative history to consider because those
materials were destroyed in the 1935 fire in the State Capitol. See State v. Wolf,
260 Or App 414, 423, 317 P3d 377 (2013).
7
ORS 431.180 was restructured to its present form in 2015. Or Laws 2015,
ch 736, § 36. The parties have not supplied us with legislative history or other
information suggesting that the 2015 restructuring was intended to alter the
meaning of the statute, and our own research has not yielded any indication that
the 2015 legislature intended to change the meaning of the statute or employ its
terms differently from the 1919 legislature’s use of those terms.
Cite as 329 Or App 460 (2023) 471
health. Webster’s defined “sanitary” as “[o]f or pertaining to
health; designed to secure or preserve health; relating to the
preservation or restoration of health; hygienic, as sanitary
regulations; sanitary science.” Webster’s New Int’l Dictionary
1878 (1st ed 1910) (emphasis in original). Other dictionaries
supplied similar definitions. The Century Dictionary defined
“sanitary” as “[p]ertaining to health or hygiene or the pres-
ervation of health; hygienic; health.” The Century Dictionary
5335 (1911). The Cyclopedic Law Dictionary defined “sani-
tary” as “[p]ertaining to, or designed to secure, sanity or
health; relating to the preservation of health.” Cyclopedic
Law Dictionary 912 (2nd ed 1922). In support of that defi-
nition, it cited People ex rel Longenecker v. Nelson, 133 Ill
565, 579, 27 NE 217, 219 (1890), a case which addressed the
meaning of the term “sanitary” in the context of the phrase
“sanitary district,” and concluded that “sanitary” referred to
the preservation and protection of public health. Id.Giving “interfere” and “sanitary” their ordinary
meanings in 1919, it would appear that the legislature
intended what is now ORS 431.180 to prohibit health offi-
cials from intermeddling in the medical decisions of individ-
uals, but to preserve the authority of public health officials
to impose general measures to safeguard public health.
Context supports that conclusion. The context of a
statute includes other statutes enacted at the same time.
Hernandez v. Catholic Health Initiatives, 311 Or App 70,
74, 490 P3d 166 (2021). At the same time that it enacted
the prohibition on interfering with an individual’s choice of
treatment, the legislature enacted a number of broad public
health provisions, including provisions authorizing health
authorities to adopt measures to address communicable dis-
eases. For example, the legislature conferred on the state
board of health the power to “make or enforce such rules
and regulations as such board may deem wise and neces-
sary for protection of the health of the people of the commu-
nity or the state” during epidemics. Or Laws 1919, ch 264,
§ 11. Relatedly, the legislature specified that “[n]o pupil,
teacher or janitor shall be permitted to attend any private
parochial or public school when afflicted with any communi-
cable disease * * * except in strict conformity with the rules
472 Free Oregon, Inc. v. Oregon Health Authority
and regulations of the state board of health.” Or Laws 1919,
ch 264, § 23. Given that context, and the common mean-
ing of the word “sanitary” at the time, we think it likely
that the legislature intended the reference to “sanitary” in
what is now ORS 431.180 as a clarification that the right
to choose one’s own mode of treatment was subject to the
general public health laws. If the statute is read as peti-
tioners read it, to exempt individuals from complying with
public health laws when such laws impose requirements at
odds with their preferred choices, then that would seriously
undermine the effectiveness of public health measures.
Reading ORS 431.180 as we have—to prohibit
health officials from intermeddling in the medical decisions
of individuals but to preserve the authority of those offi-
cials to implement and enforce measures to safeguard pub-
lic health—we are unable to conclude that the challenged
rules, on their face, conflict with ORS 431.180. On their face,
the rules do not permit health officials to intermeddle or
intervene in an individual’s healthcare decisions; whether
to obtain a vaccine is left entirely to the individual.
To be sure, the consequences that the rules attach
to the choice not to obtain a vaccine or seek an exemption
can make an individual’s decision whether to obtain a vac-
cine a very difficult personal decision. Those consequences
are exclusion from some workplaces, which is a significant
burden. The rules nevertheless leave the decision whether
to obtain a vaccination, as challenging as it can be, solely in
the hands of the individual, and do not place it in the hands
of health officials.
Finally, even if the consequences that the rules
attach to the failure to obtain a vaccine (or an exemption)
could qualify as “interfer[ing]” with an individual’s choice of
medical or spiritual treatment, those consequences—exclu-
sion from working in healthcare or school settings, settings
with vulnerable populations—are ones that are on their
face aimed at preserving public health, so as to qualify as
“sanitary” requirements, as the legislature that originally
enacted what is now ORS 431.180 would have understood
the term “sanitary.” In that regard, it is worth observing
that it was not uncommon to refer to measures aimed at
Cite as 329 Or App 460 (2023) 473
controlling the spread of disease through isolation or sep-
aration—such as quarantines—as “sanitary” measures at
the time this provision was first enacted. See, e.g., Smiley v.
MacDonald, 60 NW 355, 358 (Neb 1894) (rejecting assertion
that government exceeded its power by entering into a gar-
bage-removal contract with a private contractor, explaining
that “[t]he alleged excess of power is a mere sanitary mea-
sure, as obviously so as the familiar and necessary quar-
antine for the detention of persons exposed to contagious
diseases”).
For these reasons, we are persuaded that the chal-
lenged rules do not, on their face, conflict with ORS 431.180.
As we have mentioned, the scope of our review is limited
to an evaluation of whether the rules, on their face, con-
flict with ORS 431.180. We are not called upon, and are not
permitted within this proceeding, to evaluate the extent to
which a particular application of the rules might contravene
ORS 431.180, and we express no opinion regarding the via-
bility of any such as-applied challenge.
3. The rules do not violate ORS 433.416.
ORS 433.416(1) mandates that employers of “health
care worker[s] at risk of contracting an infectious disease in
the course of employment” provide those employees “preven-
tive immunization for infectious disease if” the “immuniza-
tion is available and is medically appropriate.” Subsection 3
provides, “A worker shall not be required as a condition of
work to be immunized under this section, unless such immu-
nization is otherwise required by federal or state law, rule or
regulation.” (Emphasis added.)
Petitioners argue that “[t]he exception swallows
the rule under this construction, erasing subsection (3)
altogether.” That might be true if OHA had relied on ORS
433.416(3) as the source of its statutory authority to promul-
gate the challenged rules. As discussed above, however, OHA
had authority to adopt the two rules under ORS 413.042 and
ORS 431.110 and, moreover, did not rely on ORS 433.416
as an authorizing statute. Accordingly, the rules at issue
are state rules that “otherwise” require the vaccinations at
issue and, therefore, do not contravene ORS 433.416(3). In
474 Free Oregon, Inc. v. Oregon Health Authority
other words, we agree with the United States District Court
for the District of Oregon that
“at the time [relevant to this matter], there was a state rule
requiring [COVID-19] immunization, OAR 333-019-1010.
Therefore, [p]laintiff’s case falls under the second clause
of [ORS 433.416(3)],” [which states,] “ ‘A worker shall not be
required as a condition of work to be immunized under this
section, unless such immunization is otherwise required by
federal or state law, rule or regulation.’ ”
Morris v. Asante Health Sys., 2023 WL 3766615, *21 (D Or
2023) (emphasis in original).
4. The rules are not preempted by 21 USC § 360bbb-3.
The Supremacy Clause of Article VI of the United
States Constitution provides, in relevant part, that “the
Laws of the United States which shall be made in Pursuance
[of the United States Constitution] * * * shall be the supreme
Law of the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of any
state to the Contrary notwithstanding.” Preemption of state
law by federal law follows when the federal law includes an
express preemption provision, when a congressional statu-
tory scheme “so completely occupies the field” of a specific
subject matter that its preemption intent is implied, and
when preemption intent is implied by “an actual conflict
between state and federal law.” Willis v. Winters, 350 Or 299,
308, 253 P3d 1058 (2011) (citing Crosby v. National Foreign
Trade Council, 530 US 363, 372, 120 S Ct 2288, 147 L Ed 2d
352 (2000)).
Petitioners point to FDCA section 564 as being
in direct conflict with, and thus preempting, the chal-
lenged rules. Section 564 authorizes the Food and Drug
Administration (FDA) to issue an “emergency use” authori-
zation (EUA) for a medical product, such as a vaccine, under
certain emergency circumstances. 21 USC § 360bbb-3(a)
(1). That authorization permits the product to be introduced
into interstate commerce and administered to individuals
even when FDA has not approved the product for more gen-
eral distribution pursuant to its standard review process.
Id. Section 564 directs FDA, “to the extent practicable”
given the emergency circumstances and “as the [agency]
Cite as 329 Or App 460 (2023) 475
finds necessary or appropriate to protect the public health,”
to impose “[a]ppropriate” conditions on each EUA. 21 USC
§ 360bbb-3(e)(1)(A). Some of those conditions are designed to
ensure that recipients of the product “are informed” of cer-
tain things, including “the option to accept or refuse admin-
istration of the product.” 21 USC § 360bbb-3(e)(1)(A)(ii)(III).
We understand petitioners to put forth two argu-
ments to support their contention that the rules contravene
section 564: (1) administration of an EUA-approved product
requires recipients to supply informed consent, which the
contested rules, which allegedly mandate vaccination by an
EUA product, do not allow; and (2) prospective recipients of
an EUA product must be informed of their right to refuse
the product, a requirement which the contested rules violate
because they make the vaccine a condition of employment.
The Sixth Circuit recently addressed and rejected
identical arguments in Norris v. Stanley, 73 F4th 431, 438
(6th Cir 2023), and we find that court’s reasoning per-
suasive. In Norris, university employees challenged their
employer’s implementation and enforcement of a COVID-19
vaccine requirement. 73 F4th at 433. As petitioners do here,
the plaintiffs argued that the university policy conflicted
with section 564 and, consequently, was preempted. Id. at
438. The court disagreed, explaining that
“[t]he EUA statute instructs that, ‘to the extent prac-
ticable given the applicable circumstances,’ the Secretary
of Health and Human Services (HHS) ‘shall, for a person
who carries out any activity for which the authorization is
issued, establish such conditions on an authorization * * *
as the Secretary finds necessary or appropriate to protect
the public health.’ ”
Id. (quoting 21 USC § 360bbb-3(e)(1)(A) (emphasis added)).
Those conditions include
“ensur[ing] that individuals to whom the product is admin-
istered are informed * * * of the option to accept or refuse
administration of the product, of the consequences, if any,
of refusing administration of the product, and of the alter-
natives to the product that are available and of their bene-
fits and risks.”
476 Free Oregon, Inc. v. Oregon Health Authority
21 USC § 360bbb-3(e)(1)(A)(ii)(III). The court explained that
that condition “addresses the interaction between the med-
ical provider and the person receiving the vaccine, not the
interaction between an employer and an employee receiving
a vaccine.” 73 F4th at 438 (citing 21 USC § 360bbb-3(e)(1)(A)
(ii)). In fact, the statute requires those conditions “for a per-
son who carries out any activity for which authorization is
issued,” such as administering the product. See id. (citing 21
USC § 360bbb-3(e)(1)(A)). The court explained, “The statute
is meant to ensure patients’ consent to the pharmaceutical
they are receiving, but this does not mean that [the univer-
sity] cannot require vaccination as a term of employment.” Id.
For the same reasons, we reject petitioners’ preemp-
tion argument. That is, we conclude that section 564 does
not conflict with the OHA rules because OHA is not admin-
istering the responsibilities of HHS and is not a medical
provider that administers the EUA vaccines. Consequently,
OHA’s rules, which impose public health requirements in
specific work environments, are not preempted by section
564.
B. Petitioners have failed to demonstrate that the rules vio-
late the state or federal constitution.
1. Petitioners’ separation-of-powers argument is inade-
quately developed to permit review.
Without pointing to any constitutional provision
or the case law addressing separation-of-powers principles
under the Oregon Constitution, petitioners assert that the
OHA rules “are unconstitutional because they conflict with
and abrogate statutes,” as an agency, “OHA does not have
legislative authority,” and, as a result, the OHA rules are a
violation of the separation-of-powers principle. Noting peti-
tioners’ failure to develop an argument under applicable
authority and relying on Beall Transport Equipment Co. v.
Southern Pacific, 186 Or App 696, 700-01 n 2, 64 P3d 1193,
adh’d to as clarified on recons, 187 Or App 472, 68 P3d 259
(2003), OHA argues that we “should therefore decline to
address petitioners’ separation-of-powers argument because
it is insufficiently developed.” We agree with OHA. On its
face, petitioners’ argument is in tension with a long-standing
Cite as 329 Or App 460 (2023) 477
understanding that a state legislature’s police power to
establish and enforce measures to safeguard public health
is a delegable one.8 In view of petitioners’ failure to develop
an argument that addresses the applicable law or the his-
tory of conferring broad power on health boards, we do not
address that question.
2. Petitioners’ due process and contract clause chal-
lenges are outside the scope of review under ORS
183.400.
Finally, petitioners argue that the OHA rules violate
the Due Process Clause of the United States Constitution
and the Contract Clause of the Oregon Constitution. Both
arguments relate to the impact the challenged rules have
on petitioners’ employment contracts and, in the case of the
Due Process Clause, on their asserted protected property
interests in continued employment. On their face, though,
the rules do not address or affect contracts and, to the extent
petitioners assert that the rules impair particular contracts
and potentially protected property interests, resolution of
that issue is beyond the scope of an ORS 183.400 rule chal-
lenge. See AFSCME Local 2623 v. Dept. of Corrections, 315
Or 74, 79, 843 P2d 409 (1992) (“Aside from questions that
8
As Judge Cooley observed in his treatise on state constitutions, the state police
power encompasses the authority to make “quarantine regulations and health laws
of every description” that “are or may be sometimes carried to the extent of order-
ing the destruction of private property when infected with disease or otherwise
dangerous.” Thomas M. Cooley, A Treatise on the Constitutional Limitations Which
Rest Upon the Legislative Power of the States of the American Union, 584 (1st ed
1868). Cooley noted that such “regulations have generally passed unchallenged.”
Id. at 584-85. Amplifying his discussion of the issue a few years later, Judge Cooley
observed that it was common to confer broad powers on boards of health:
“It is usual, by either general law or by municipal charters, to confer very
extensive powers on local boards of health, under which, when acting in good
faith, they may justify themselves in taking possession of, purifying, or even
destroying, the buildings or other property of the citizen, when the public
health or comfort demands such strong measures.
“* * * * *
“And they may unquestionably be vested with very large powers to establish
pest-houses, and make very stringent regulations to prevent the spread of
contagious diseases.”
Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest
Upon the Legislative Power of the States of the American Union, 584 n 2 (3rd ed
1874) (citing, among other cases, Coe v. Schultz, 47 Barb 64 (1866), for proposition
that power to pass sanitary regulations could be conferred on a sanitary board).
478 Free Oregon, Inc. v. Oregon Health Authority
might arise concerning the facts surrounding the process of
adopting a rule[,] * * * judicial review under ORS 183.400 is
limited to the face of the rule and the law pertinent to it.”).
IV. CONCLUSION
For the reasons explained, we reject the challenges
to former OAR 333-019-1010 (January 31, 2022) and for-
mer OAR 333-019-1030 (January 28, 2022), raised in this
proceeding.
Motion to dismiss as moot denied; former OAR
333-019-1010 (Jan 31, 2022) and former OAR 333-019-1030
(Jan 28, 2022) held valid.