Angle v Board of Dentistry, No. A162472, decided by the Oregon Court of Appeals on October 17, 2018, is a statutory interpretation case that may inform how dentists respond to requests for information from the Oregon Board of Dentistry.

ORS 679.170(6) provides that no person shall “fail to respond” to a written request from the Board of Dentistry for information.  Does a “nonresponsive” reply count as a failure to respond?  In this case, the Oregon Court of Appeals decides that just saying something is not sufficient to comply with ORS 679.170(6).  Instead, responses must be responsive.  According to the court, telling the board to go fly a kite or writing a letter about the history of Rome will not pass muster.  However, a “curt and not overly helpful” response may work.

In Angle, the Board of Dentistry had concerns that an orthodontist might not have complied with a consent order he entered into in conjunction with a disciplinary settlement. Accordingly, the Board wrote to the orthodontist on July 22, 2015 to request compliance-related information.  What happened next was disputed.  The orthodontist contends that he mailed the requested response on July 27, in the same envelope as a check that the Board received and cashed.  For its part, the Board asserts that the check was not accompanied by anything else.

In any event, on September 21, 2015, the Board again requested a response to its July 22 demand. The orthodontist tersely wrote back that he had mailed the requested response on July 27, in the same envelope as the check.  He enclosed a copy of the canceled check as evidence that the Board had received that mailing.  But he did not submit a copy of the alleged July 27 response.  He closed his letter by suggesting, “[h]ow about we stop playing games and treat each other with respect.”

The Board responded with one final letter on October 6 denying that it had received any cover letter accompanying the check, and requesting a copy of the alleged correspondence. The orthodontist did not reply, and the Board began proceedings to suspend his license.

In administrative proceedings, the Board of Dentistry ruled, among other things, that the orthodontist had failed to respond to the September 21 request, in violation of ORS 679.170(6). (The Board also ruled that he had failed to respond to the October 6 letter and suspended his license pending further action by the Board.)

On appeal, the Oregon Court of Appeals considered whether the orthodontist’s “curt and not overly helpful” September 27 letter constituted a failure to respond within the meaning of the statute.  If any reply to the September 21 request would constitute a response for purposes of ORS 679.170(6), then regardless of its content, the orthodontist’s September 27 letter would not have violated the statute. But the Court of Appeals declined to adopt that interpretation.

The court held that the ordinary meaning of the term “respond” suggests a responsive response, not a nonsensical or off-topic one.  Consistent with that interpretation, in a previous case, the Court of Appeals had held that a dentist “failed to respond” when he reacted to a request for information by suing the Board.  The Angle court reasoned that if any communication triggered by a request were deemed a “response,” then in the previous case, serving the summons at the outset of the lawsuit would have been sufficient to comply with ORS 679.170(6). As further support, the court noted that the Oregon Supreme Court had interpreted a rule that prohibits attorneys from knowingly failing to respond to an information request from a disciplinary authority as meaning that a nonresponsive reply is a failure to respond. Finally, the court examined the legislative history of ORS 679.170(6), which revealed that the Board had wanted the “clout” to be able to sanction dentists who were not responding to its inquiries. The court reasoned that ORS 679.170(6) would not serve its intended purpose if “respond” were interpreted to mean any response whatsoever.

Thus, the court arrived at its final conclusion: silence or a nonresponsive response constitutes a failure to respond for purposes of ORS 679.170(6). In short, telling the Board to go fly a kite is a failure to respond.

Here, however, the orthodontist did not tell the Board on September 27 to go fly a kite. His letter may not have been overly helpful, but it “did notify the board that petitioner had already responded, provided the date of mailing, and provided evidence of the board’s receipt.”  Thus, the court concluded that his September letter was not nonresponsive, assuming that he actually had already responded in July as he claimed.  The Court of Appeals remanded for the Board to resolve the factual dispute about what, if anything, the orthodontist sent to the Board in July.

The statements and views expressed in this posting are my own and do not reflect those of my law firm, are intended for general informational purposes only, and do not constitute legal advice or legal opinion.

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Rachel Lee helps her clients with a variety of business litigation, with a specific focus on appellate matters. When advocating for her clients on appeal, Rachel draws on her previous experience serving as a judicial clerk for Judge Susan P. Graber of the Ninth Circuit Court of Appeals. Whether at the appellate or trial court level, clients in industries as diverse as healthcare, construction, manufacturing, utilities, and online services have come to rely on Rachel’s assistance in navigating complex civil litigation.