and submitted February 16, 2017
Employees Retirement System Board 28083806907
John Holady argued the cause and fled the briefs for
L. Kutler, Assistant Attorney General, argued the cause for
respondent. With him on the brief was Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Ortega, Presiding Judge, and Egan, Chief Judge, and Lagesen,
seek judicial review of an order of the Public Employees
Retirement System Board upholding an order of the Public
Employees Retirement System (PERS) determining that
petitioners were overpaid benefits. Petitioners contend that,
to initiate collection efforts against petitioners as
lump-sum payees, PERS was required to commence a civil
action. Held: Under ORS 238.715, PERS was permitted
to initiate recovery of lump-sum overpayments by civil action
or "other proceeding." The contested case
proceeding begun by PERS was an "other proceeding"
within the meaning of that statute, and PERS [291 Or.App.
339] "commenced" the proceeding by timely notifying
petitioners of the amounts of the overpayments and their
opportunity to seek administrative review.
Or.App. 340]EGAN, C. J.
these petitions, consolidated for purposes of opinion,
petitioners seek judicial review of an order of the Public
Employees Retirement System Board (the board) upholding an
order of the Public Employees Retirement System (PERS) that
petitioners were overpaid benefits, after a summary
determination on a contested case hearing. We conclude that
the board did not err and therefore affirm.
each retired from public employment and elected to receive
their PERS benefits in a lump-sum payment. Petitioner Parks
received a lump-sum payment on August 22, 2003. Petitioner
Metje received a lump-sum payment on February 13, 2004. In
March 2006, both petitioners received letters from PERS
notifying them that PERS had determined that their benefits
had been miscalculated and that, as a result, they had
received an overpayment. The letters included a copy of a
January 2006 order by PERS establishing a repayment method
and promising individual notices describing the exact amounts
of the overpayments. The letter also described their appeal
were legal challenges to PERS's January 2006 order that
resulted in a stay and a hiatus in overpayment collections.
That litigation concluded in February 2012. In April 2012,
PERS notified petitioners that it was resuming collection of
the overpayments and, in December 2012 and January 2013, PERS
notified petitioners Metje and Parks, respectively, of the
exact amounts of their overpayments.
overpayment notices included a notice of appeal rights, which
described an administrative review by the PERS director,
permitting the submission of written statements. Both
petitioners sought administrative review, after which PERS
issued a "review determination" upholding the
were notified that they had a right to seek a contested case
hearing after the review determination. The review
determination included a notice of appeal rights:
you disagree with the above Determination, you may request a
contested case hearing before an administrative [291 Or.App.
341] law judge by filing a petition within 45 days after the
date of this determination."
petitioners requested a contested case hearing before the
board, which the board referred to administrative law judges
(ALJs) of ...