No. 796 August 26, 2026 389
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Gloria CASILLAS,
Kristina Onshus-Womble, Momo Hurley,
Dawn Thompson, Felix Valadez, and Kelly Chudler,
Plaintiffs-Appellants
Cross-Respondents,
and
Jameka GIBSON,
Plaintiff
Cross-Respondent,
v.
David GERSTENFELD,
in his official capacity as Director of the
Oregon Employment Department,
Defendant-Respondent
Cross-Appellant,
and
OREGON EMPLOYMENT DEPARTMENT,
Defendant
Cross-Appellant.
Multnomah County Circuit Court
22CV18836; A184620
Eric L. Dahlin, Judge.
Argued and submitted October 28, 2025.
Kelsey Heilman argued the cause for appellants-crossrespondents. Also on the briefs were Emily Teplin Fox,
Oregon Law Center, and Divine Zheng.
Colm Moore, Assistant Attorney General, argued the
cause for respondent-cross-appellant and cross-appellant.
Also on the briefs were Dan Rayfield, Attorney General, and
Benjamin Gutman, Solicitor General.
No appearance for cross-respondent.
390 Casillas v. Gerstenfeld
Jane L. Moisan and People’s Law Project filed the brief
amicus curiae for National Employment Law Project.
Before Tookey, Presiding Judge, Kamins, Judge, and
Jacquot, Judge.
TOOKEY, P. J.
On appeal, affirmed in part, reversed in part and
remanded; on cross-appeal affirmed.
Cite as 352 Or App 389 (2026) 391
TOOKEY, P. J.
This case requires us to consider, among other legal
points, whether certain practices of the Oregon Employment
Department (OED) related to purported overpayments of
unemployment insurance benefits violate the due process
rights of plaintiffs, who were recipients of such benefits.1
Plaintiffs appeal a general judgment granting summary judgment in favor of OED on certain of plaintiffs’
claims. OED cross-appeals the general judgment, which
also granted partial summary judgment to plaintiffs on certain claims.
On appeal, plaintiffs raise four assignments of
error. In the first, they assert that the trial court erred in “finding that due process does not require OED to tell claimants what ‘type’ has been assigned to their overpayment.”
In the second, they assert that the trial court erred in “finding Plaintiff-Appellants’ third claim for relief, concerning
the use of a two-notice system to establish overpayments of
unemployment benefits, was moot.” In the third, they assert
the trial court erred in “finding that the use of the two-notice system to establish overpayments of unemployment
benefits was not ‘capable of repetition’ within the meaning
of ORS 14.175.” In the fourth, they assert that the trial court erred in “finding that OED’s overpayment notices contained
sufficient individualized reasons to support the agency’s
decision.”
We conclude, with respect to plaintiffs’ first and
fourth assignments of error, that the trial court erred. We
also conclude, with respect to plaintiffs’ second and third
assignments of error, that the trial court did not err. Thus,
on plaintiffs’ appeal, we affirm in part, reverse in part, and remand.
On cross-appeal, OED seeks reversal of the trial
court’s entry of partial summary judgment in favor of
1
Plaintiffs sued David Gerstenfeld, in his official capacity, as Director of OED and OED. As plaintiffs do in their brief, we refer to the defendants in this case as OED.
We also note that amicus curiae the National Employment Law Project has filed a brief in support of plaintiffs.
392 Casillas v. Gerstenfeld
plaintiffs, raising six assignments of error. In the first two assignments, OED asserts that the trial court erred in granting partial summary judgment to plaintiffs and in “denying
OED’s motion for summary judgment on Claim #1.C.,” which
alleged that OED violated due process by continuing to collect overpayments when it had been determined that a claimant
had good cause to file a late hearing request, and the appeal
had not been resolved on the merits. In the third through
sixth assignments, OED asserts that the trial court erred in
granting partial summary judgment to plaintiffs and in denying OED summary judgment on “Claim #2” and “Claim #6.”
As to those claims, the trial court determined that certain
notices sent to claimants by OED were “unconstitutional as to
Spanish readers who cannot read English because the notices
use partial, but not complete, English-to-Spanish translation.”
We conclude, as to OED’s assignments of error on
cross-appeal, that the trial court did not err. Thus, on OED’s cross-appeal, we affirm.
Before proceeding with our discussion of this case,
we pause to note that in considering the due process issues
presented, we address what the United States Constitution
requires; that is, our job is to determine only what OED must
do to comply with its obligations under the United States
Constitution. In our review, we do not consider whether
OED’s practices constitute “best practices.” Put another
way, our legal conclusions that certain OED practices complied with due process are only that; those conclusions are
not an endorsement of OED’s practices.
I. BACKGROUND
In 1935, “in response to rampant unemployment
associated with the Great Depression, Congress established
an unemployment compensation program.” Newport Church
of Nazarene v. Hensley, 335 Or 1, 5, 56 P3d 386 (2002). In
doing so, it “impos[ed] a federal payroll tax upon employers,” but in order to “induce states to maintain their own
unemployment compensation programs, * * * Congress also
provided that employers could offset as much as 90 percent
of the federal tax by paying into a qualified state unemployment compensation program.” Id. “Shortly after the
Cite as 352 Or App 389 (2026) 393
enactment of the federal payroll tax, every state adopted
qualifying programs.” Id.
Today, “[u]nemployment compensation exists under
a federal-state scheme of unemployment insurance legislation.” Unemployment Compensation, 76 Am Jur 2d § 2
(2025). Thus, “[f]ederal and state unemployment compensation statutes are designed to operate together as a cooperative endeavor.” Id.
OED is the agency responsible for “[a]dminister[ing] the unemployment insurance laws of this state to
support Oregonians during periods of unemployment.” ORS
657.601(1). Ultimately, the purpose of Oregon’s unemployment insurance scheme is simple: “[T]o provide a means of
living for an unemployed worker.” McPherson v. Employment
Div., 285 Or 541, 543, 591 P2d 1381 (1979). Like the unemployment insurance schemes in other states, Oregon’s scheme
works to “insure a diligent worker against the vicissitudes
of enforced unemployment not voluntarily created by the
worker without good cause.” Unemployment Compensation,
76 Am Jur 2d § 1 (2025).
The COVID-19 pandemic generated an increase
in unemployment and unemployment benefit claims, and
a resulting expansion of federal unemployment programs
administered by OED pursuant to federal law. Specifically,
in addition to administering Oregon’s unemployment insurance scheme, OED, during the COVID-19 pandemic, was
charged with administering what OED calls “pandemic-era
unemployment benefit programs,” including the Pandemic
Unemployment Assistance (PUA) program, the Federal
Pandemic Unemployment Compensation program, and the
Pandemic Emergency Unemployment Compensation program. See generally Pub L 116-136, §§ 2101-2116, 134 Stat
281 (2020).
Plaintiffs in this case are six Oregonians who
received unemployment benefits through OED and whose
benefits OED later sought to “claw back” on the grounds
that, according to OED, plaintiffs were ineligible to receive
the benefits, plaintiffs were paid too much, or both. Plaintiffs filed this action against OED asserting nine claims for relief 394 Casillas v. Gerstenfeld
which, as described by the trial court, assert “OED’s system for notifying claimants of such overpayment decisions
is unconstitutionally confusing and prevented Plaintiffs
from being able to effectively challenge such decisions.”
Plaintiffs’ claims, at least insofar as they are relevant to
our analysis on appeal, are premised on their right to procedural due process under the Fourteenth Amendment to the
United States Constitution.
In the trial court, the parties filed cross-motions for
summary judgment on plaintiffs’ claims, and the trial court
ruled in favor of plaintiffs, in part, as to certain claims and in favor of OED as to other claims. As explained in more
detail below, and as relevant to plaintiffs’ appeal, the trial court ruled:
• In favor of OED on Claim #5 in plaintiffs’ complaint, which asserted that OED’s notices were deficient because they “do not tell claimants which type
of overpayment has been assigned to them and the
consequences of that classification.” (Plaintiffs challenge this ruling in their first assignment of error.)
• In favor of OED on Claim #3 in plaintiffs’ complaint, which asserted that “OED’s two-notice system is unconstitutional because it withholds essential information.” (Plaintiffs challenge this ruling
in their second and third assignments of error.)
• In favor of OED, in part, on Claim #2 and Claim #6
in plaintiffs’ complaint, which asserted that OED’s
notices were deficient because they “contained
insufficient content and thus were not reasonably
calculated to give plaintiffs the information needed
to understand and challenge the decision” and “that
there was insufficient content in the administrative
decisions establishing overpayment.” (Plaintiffs
challenge this ruling in their fourth assignment of
error.)
Additionally, as explained in more detail below, as
relevant to OED’s cross-appeal, the trial court ruled:
Cite as 352 Or App 389 (2026) 395
• In favor of plaintiffs, in part, on Claim #1 in plaintiffs’ complaint, which asserted, in relevant part,
that “OED should halt efforts to recover overpayments if the Office of Administrative Hearings
has found good cause for the late hearing request
because at that point the validity of the overpayment is in legal question.” (OED challenges this ruling in its first and second assignments of error.)
• In favor of plaintiffs, in part, on Claim #2 and Claim
#6 in plaintiffs’ complaint, which are described
above, on the basis that OED’s provision of a partial translation of certain documents into Spanish
violated due process. (OED challenges this ruling
in their third through sixth assignments of errors.)
And, as noted, plaintiffs appeal and OED crossappeals the resulting judgment.
We provide additional detail about the historical
facts, plaintiffs’ claims, and the trial court’s rulings in our discussion of each assignment of error.
II. ANALYSIS
“On review of cross-motions for summary judgment,
we view the record for each motion in the light most favorable to the party opposing it to determine whether there is
a genuine issue of material fact and, if not, whether either
party is entitled to judgment as a matter of law.” O’Kain v.
Landress, 299 Or App 417, 419, 450 P3d 508 (2019).2
Plaintiffs’ claims are rooted in their right to procedural due process, which has two components: “notice and
an opportunity for a hearing.” State v. Sanchez-Cacatzun,
2
We note that, in deciding the summary judgment motions in this case, the trial court applied what it referred to during argument on the parties’ summary judgment motions as a “modified” summary judgment standard, where it was “effectively weighing some evidence.” And the trial court’s letter opinion reflects that the parties believed that, on appellate review, “the record would effectively be reviewed de novo because all the submissions are in writing.”
On appeal, no party addresses how the trial court’s use of a “modified” summary judgment standard should impact the standard we use in reviewing the parties’ assignments of error. In the absence of argument from the parties on that point, we use the standard that we usually use on review of cross-motions for summary judgment as articulated in O’Kain.
396 Casillas v. Gerstenfeld
304 Or App 650, 664, 468 P3d 964 (2020), rev den, 367 Or
559 (2021); see also Mullane v. Central Hanover Bank &
Trust Co., 339 US 306, 313, 70 S Ct 652, 94 L Ed 865 (1950)
(“The fundamental requisites of due process are adequate
notice and an opportunity to be heard.” (Internal quotation
marks omitted.)). “Though right to a hearing is interrelated
to having received adequate notice, those rights are distinct.” Sanchez-Cacatzun, 304 Or App at 664.
In this case, plaintiffs’ first and fourth assignments
of error on appeal and OED’s third through sixth assignments of error on cross-appeal concern whether OED provided adequate notice to plaintiffs to satisfy due process. We address those six assignments of error first, concluding that
plaintiffs’ first and fourth assignments of error are, at least in part, well taken. We also conclude that the trial court did not err with regard to the rulings underlying OED’s third
through sixth assignments of error on cross-appeal.
We next address OED’s first and second assignments of error on cross-appeal, which concern the opportunity for a hearing. With regard to those assignments of error, we conclude that the trial court did not err.
After that we turn to plaintiffs’ second and third
assignments of error, which seek reversal of the trial court’s determination that Claim #3 in plaintiffs’ complaint was
moot and was not capable of repetition yet evading review
within the meaning of ORS 14.175. As to those assignments,
we conclude that the trial court did not err.
A. Adequate Notice
As noted, plaintiffs’ first and fourth assignments of
error on appeal and OED’s third through sixth assignments
of error on cross-appeal concern whether OED provided adequate notice to plaintiffs to satisfy due process.
“The guidelines for determining whether a particular notice procedure comports with the requirements of
due process were established in Mullane v. Central Hanover
[Bank & Trust] Co, 339 US 306, 70 S Ct 652, 94 L Ed 865
(1950).” Egge v. Davis, 27 Or App 383, 386-87, 556 P2d 153
(1976), rev den, 277 Or 99, cert den, 434 US 820 (1977). In
Mullane, the Supreme Court explained:
Cite as 352 Or App 389 (2026) 397
“An elementary and fundamental requirement of due
process in any proceeding which is to be accorded finality is
notice reasonably calculated, under all the circumstances,
to apprise interested parties of the pendency of the action
and afford them an opportunity to present their objections.
The notice must be of such nature as reasonably to convey
the required information, and it must afford a reasonable
time for those interested to make their appearance. But if
with due regard for the practicalities and peculiarities of
the case these conditions are reasonably met, the constitutional requirements are satisfied. The criterion is not the
possibility of conceivable injury but the just and reasonable
character of the requirements, having reference to the subject with which the statute deals.”
339 US at 314-15 (internal citation and quotation marks
omitted).
“As with other aspects of due process, the extent of
notice required by the Due Process Clause varies with the
type of proceeding and the type of interest involved.” Hayes
Oyster Co. v. DEQ, 316 Or App 186, 197, 504 P3d 15 (2021),
rev den, 369 Or 507 (2022); see also Walker v. Hutchinson,
352 US 112, 115, 77 S Ct 200, 1 L Ed 2d 178 (1956) (noting
the “notice required will vary with circumstances and conditions”). That is, “[i]n determining what notice is appropriate under the Mullane standard, we must balance the interest of
the State and the individual interest sought to be protected
by the Fourteenth Amendment.” Grimm v. City of Portland,
125 F4th 920, 925 (9th Cir 2025), cert den, ___ US ___, 146
S Ct 1513 (2026) (internal quotation marks omitted).3 Thus,
ultimately, the “due process right to fair notice is a general rule of law that demands a substantial element of judgment
and that can hardly be implemented mechanically.” Oneida
Indian Nation of New York v. Madison County, 665 F3d 408,
434-35 (2d Cir 2011) (internal quotation marks, ellipsis, and
brackets omitted). And, although it has been stated that
what amounts to constitutionally adequate notice is “fairly
low,” Espinosa v. United Student Aid Funds, Inc., 553 F3d
1193, 1202-03 (9th Cir 2008), aff’d, 559 US 260, 130 S Ct
3
We are, of course, “not bound by the decisions of the Ninth Circuit—or any other federal circuit—even on questions of federal law.” State v. Breedwell, 323 Or App 172, 195, 522 P3d 876 (2022), rev den, 371 Or 106 (2023). Nevertheless, in this opinion, “we consider such cases for their persuasive value.” Id. 398 Casillas v. Gerstenfeld
1367, 176 L Ed 2d 158 (2010), it is also true that “[d]ue process requires the fullest notice where litigation over a plaintiff’s individual rights occurs,” Hayes Oyster Co., 316 Or App at 197.
At bottom, “[t]he purpose of notice under the Due
Process Clause is to apprise the affected individual of, and
permit adequate preparation for, an impending ‘hearing.’ ”
Long v. Board, 189 Or App 56, 60, 73 P3d 934 (2003). And
“the constitutionality of a particular procedure for notice is assessed ex ante, rather than post hoc.” Jones v. Flowers, 547 US 220, 231, 126 S Ct 1708, 164 L Ed 2d 415 (2006).
Our decision in Long, although it is distinguishable
in certain respects, is instructive as to how we have considered whether notice was adequate under the due process
clause. In that case, the Board of Parole and Post-Prison
Supervision notified the petitioner of its “preliminary determination” that the petitioner was a “predatory sex offender”
based on the petitioner’s “history of sex crimes,” that his
“current sex offense conviction” involved “multiple victims,”
and that petitioner had used “weapons or threats.” Long,
189 Or App at 58-59. It also informed petitioner that he
could “respond in writing if he disagreed with the board’s
preliminary determination.” Id. at 59.
We concluded that that notice was constitutionally
insufficient under the Due Process Clause, explaining:
“The board notified petitioner that it had made a preliminary decision to designate him as a predatory sex offender
because, among other things, he had a ‘history of sex crimes.’
The board, however, did not tell petitioner (until after it
had made its final decision) what sex crimes he allegedly
had committed, when those crimes allegedly occurred, or
with whom. Without that information or some process that
would permit him to discover that information, petitioner
was in no position to respond-in writing or otherwise-to the
board’s determination that he had a history of sex crimes.”
Id. at 60. Similarly, in Long, with regard to the board’s
“preliminary determination that petitioner used weapons
or threats,” we explained that the “same problem inheres”
because the board told petitioner “that it based its designation on the ‘use of weapons or threats,’ but it did not tell him Cite as 352 Or App 389 (2026) 399
when he allegedly had used any weapons or threats, whom
petitioner allegedly had threatened, or what he supposedly
had said.” Id. at 61 & n 2.
With that legal context in mind, we turn to plaintiffs’ first and fourth assignments of error and OED’s third
through sixth assignments of error.
We ultimately conclude, as set forth below, given
the circumstances of this case, that certain notices used by
OED were constitutionally inadequate, where they failed to
provide information about agency determinations that could
have significant consequences for claimants or where they
failed to provide individualized reasons that accurately captured the agency’s decision-making.
1. Overpayment type (plaintiffs’ first assignment of
error)
We begin with plaintiffs’ first assignment of error,
which asserts that the trial court erred “in finding that due
process does not require OED to tell claimants what ‘type’
has been assigned to their overpayment.” As noted, this
assignment relates to Claim #5 in plaintiffs’ complaint.
By way of background, the summary judgment
record reflects that OED classifies overpayments of unemployment benefits into three “types”: (1) “Type A,” (2) “Type
B,” and (3) “Type F.” Those types determine the limitations
period for collection of the debt generated by the overpayment, available methods of collection for the debt, and
whether the debt is eligible for waiver.
“Type A” overpayments occur where the claimant “did something that caused the overpayment to occur,
but they didn’t do it fraudulently.” Type A overpayments
are subject to various collection methods, including offset
of future unemployment benefits, wage garnishment, and
interception of state and local tax refunds. The allowable
timeframe for collection of Type A overpayments is five
years. See ORS 657.310(2)(c). Type A overpayments can
be waived by OED if the claimant can show that recovery
would be against “equity and good conscience,” see ORS
657.317(2)(a), and OED has adopted criteria to guide such
400 Casillas v. Gerstenfeld
determinations, including provisions for “automatic” waiver
in certain circumstances.
“Type B” overpayments occur when the overpayment was a “non-claimant fault” overpayment. Such overpayments could be caused by, for example, an OED error,
the claimant’s former employer not providing timely information, or the “Department of Labor [coming] out with guidance and then [coming] out with retroactive guidance” that
changed eligibility requirements. Type B overpayments can
only be collected through the offset of unemployment benefits received during the five-year period after the overpayment is established. See ORS 657.315(1)(a). And, like Type A
overpayments, waiver is possible if recovery by the state is
against “equity and good conscience.” See ORS 657.317(2)(a).
“Type F” overpayments occur where the agency
determines that there was a “misrepresentation” by a claimant or a claimant “intentionally with[held] information in
order to obtain benefits.” Like Type A overpayments, Type
F overpayments are subject to collection via offset of future
unemployment benefits, wage garnishment, and interception of state and local tax refunds. However, Type F overpayments differ from Type A overpayments in that they can
be collected “until the debt is extinguished”—i.e., there is
not five-year limit for recovery. Type F overpayments are
also subject to a penalty of 15 to 30 percent of the overpayment, see ORS 657.310(3)(a), and they cannot be waived by
OED, see ORS 657.317(2)(b).
Federally funded pandemic benefits add an additional layer of classification regarding overpayments: At
least for certain benefits, the state is required to determine “who is at fault for the overpayment (i.e., the individual,
employer, state, or a combination thereof) and whether the
overpayment is a result of claimant fraud.” Waiver of the
recovery of overpayment of federal funds is available only if
the overpayment was made “without fault” of the claimant.
In sum, the permutations of overpayment “types”
and the effect of that determination by OED is as follows, at
least as a general matter4:
4
Plaintiffs’ briefing notes that “[s]ome federally funded benefits are subject to a shorter recovery timeframe for certain collection methods.” Cite as 352 Or App 389 (2026) 401
Type/ Eligible Eligible Recovery Recovery Claimant for State for Federal Methods Time Limit Fault Waiver? Waiver?
Type A, Yes No Offset of 5 years for Claimant benefits, wage/ state benefits Fault bank account
garnishment,
tax refund
offset
Type A, Yes Yes Offset of 5 years for Not Claimant benefits, wage/ state benefits Fault bank account
garnishment,
tax refund
offset
Type B Yes Yes Offset of bene- 5 years for (Never fits only state benefits Claimant
Fault)
Type F No No Offset of None (Always benefits, wage/
Claimant bank account
Fault) garnishment,
tax refund
offset
Notwithstanding the differences in waiver eligibility, permissible collection methods, and the applicable time
limits for recovery, the overpayment notices sent by OED
do not reflect what “type” has been assigned by OED to the
overpayment.
On summary judgment, the trial court ruled in
favor of OED on this claim, determining that “Mullane does
not require OED to include overpayment types in its administrative decisions, and that the administrative decisions
meet the constitutional floor.” The trial court reasoned that
if a claimant is informed of the reasons “why OED believes
the claimant is at fault, the claimant can then challenge the
fault determination as a factual matter.”
On appeal, plaintiffs argue that OED’s “overpayment notices have three constitutional deficiencies with
respect to their explanation of overpayment type”: (1) “the
notices fail to identify the type of overpayment and its consequences”; (2) “the decisions do not explain that a successful
402 Casillas v. Gerstenfeld
challenge to overpayment type at a hearing could have
important practical implications”; and (3) “the decisions do
not contain sufficient individualized reasons to support the
overpayment classification.”
Plaintiffs ask this court to hold that “OED is
required to include in each overpayment notice”: “(1) a clear
statement of the overpayment’s type and its practical consequences (waiver eligibility, recovery options, and limitations period); (2) a clear statement that the claimant may challenge the overpayment type at a hearing with potentially
impactful consequences; and (3) individualized facts to support the type assigned.”
OED responds that its overpayment decisions satisfied constitutional notice requirements because they “provided notice to plaintiffs that they had been overpaid, the
bases of that decision, the amount, the consequences, the
availability of a waiver, and appeal deadlines.” And that,
because due process only requires OED to notify plaintiffs of
“the ‘pendency of the action’ and their opportunity to object
to that decision,” the requirements of due process were
satisfied.
Even though the threshold for constitutionally adequate notice is “fairly low,” Espinosa, 553 F3d at 1202, we
conclude that the trial court erred when it granted summary judgment to OED on Claim #5 in plaintiffs’ complaint.
That is, we agree with plaintiffs that due process requires
notice of the “type” OED has assigned to an overpayment
and its consequences on “waiver eligibility, recovery options, and limitations period,” a statement “that the claimant may
challenge the overpayment type at a hearing with potentially impactful consequences,” and “individualized facts to
support the type assigned.”
Ultimately, “[f]or notice to be effective, it must
inform the affected party of what ‘critical issue’ will be
determined at the hearing,” as “part of the function of notice is to give the charged party a chance to marshal the facts
in his defense.” Nnebe v. Daus, 931 F3d 66, 88 (2d Cir 2019)
(internal quotation marks and brackets omitted). Or put differently, “[s]o as to comport with due process, the notice of
Cite as 352 Or App 389 (2026) 403
hearing provided to an unemployment compensation claimant must adequately convey the required information to
allow the claimant to participate in the hearing, including
the purpose and scope of the hearing.” Constitutional Law,
16D CJS § 2239 (2026).
As explained above, the “type” assigned to an
overpayment has significant consequences to claimants,
including whether claimants are eligible for a waiver of
overpayment recovery (including automatic waiver in some
circumstances); whether the overpayments can be collected
by the government by means other than offsetting future
benefits, such as wage garnishment; and the limitations
period for such collections. And although the notices OED
uses inform claimants that they can request a hearing, they
do not tell claimants the type that OED has determined to
be associated with the overpayment and the significant consequences associated with that determination by OED.
In our view, absent information concerning the type
that OED has assigned to an overpayment, the notices lack
information necessary for a party to make “adequate preparation for[ ] an impending hearing.” Long, 189 Or App at 60
(internal quotation marks omitted). In reaching that conclusion, we note that OED has not proffered any reason that
would support the conclusion that informing claimants of
the “type” that it has assigned to an overpayment by OED
would impose a burden on OED.
Consequently, we conclude that the trial court erred
in granting relief to OED on Claim #5 and in denying relief
to plaintiffs on that claim.
2. Individualized reasons (plaintiffs’ fourth assignment
of error)
In plaintiffs’ fourth assignment of error, they assert
that the trial court erred in “finding that OED’s overpayment notices contained sufficient individualized reasons to
support the agency’s decision.” That assignment relates to
Claim #2 and Claim #6 in plaintiffs’ complaint, in which
they contended, respectively, as framed by the trial court,
that “eligibility decisions contained insufficient content and thus were not reasonably calculated to give Plaintiffs the
404 Casillas v. Gerstenfeld
information needed to understand and challenge the decision” and that “there was insufficient content in the administrative decisions establishing overpayment.”
Specifically, as framed by the briefing, this assignment relates to three types of notices of administrative decisions sent by OED:
• “Amended Notices of Determination for PUA,” which
informed plaintiffs of a change to a prior PUA eligibility
determination by OED;
• “Wrong Program Overpayment Notices,” which were
sent by OED when “claimants applied for and were
initially found eligible for a variety of benefits across
multiple programs but were later found ineligible for a
program or a particular claim,” and an “overpayment
resulted when OED moved a claimant’s benefits from an
incorrect claim or program to a correct one”;
• “Second Notices in the 2-Notice Series,” which informed
claimants of the amount of benefits that OED believed
claimants had been overpaid, after an earlier adverse
determination of eligibility had already been made by
OED.
Additionally, plaintiffs’ fourth assignment concerns
the “Schedules of Adjustments,” which accompanied certain
notices of administrative decisions by OED, and consists of a
table showing, among other information, the amount of the
overpayment (as calculated by OED) for specified weeks.
The trial court determined that the notices of
administrative decisions and “Schedules of Adjustments”
sent by OED “did satisfy the constitutional floor.”5
On appeal, plaintiffs contend that the trial court
erred because the three types of notices of administrative
decisions and the “Schedules of Adjustments” did not satisfy
due process. Specifically, regarding the “Amended Notices of
Determination for PUA,” plaintiffs contend that “the notices
are insufficient because they provide a list of possible reasons for the denial without specifying which one applies.”
5
There was one exception to that ruling by the trial court. As discussed below, it determined that the notices of administrative decisions did not “satisfy the constitutional floor” for certain Spanish language speakers. We address that ruling below in our discussion of OED’s third through sixth assignments of error. Cite as 352 Or App 389 (2026) 405
Regarding the “Wrong Program Overpayment Notices,”
plaintiffs contend they are “full of jargon, [and] are not reasonably calculated to allow claimants to decide if they even
have objections to the decision, much less to present those
objections.” (Emphasis in plaintiffs’ brief.) And, regarding
the “Second Notices in the 2-Notice Series,” plaintiffs contend that the notices “contain a cross-reference to the date of the first notice in the series (Underlying Eligibility Decision) instead of providing individualized reasons for the eligibility denial.” Finally, regarding the Schedules of Adjustments,
plaintiffs contend that they are deficient because they are
“not reasonably calculated to enable claimants to understand and present objections to OED’s calculation of overpayment amounts.”
As OED sees it, the trial court did not err in the
manner asserted by plaintiffs in their fourth assignment of
error. It contends that its “overpayment decisions provided
plaintiffs with a determination that they had been overpaid,
the bases of that decision (i.e., that they had been previously found ineligible), the amount of the overpayment, the potential consequences of the decision (i.e., repayment), the availability of a waiver, and appeal deadlines,” and also that the
decisions were supplemented by a “table that showed the
overpayment amount by comparing the benefits paid to the
correct benefit amount for specified weeks.”
Specifically, OED contends that the “Amended
Notices of Determination satisfy due process because they
inform a claimant that they have been deemed ineligible for
one of two reasons and that they may challenge that determination”; the “Wrong Program Overpayment Notices,”
were “not perfect, [but] they satisfied the requirements of
due process by alerting claimants that they had been determined ineligible, that they may be subject to an overpayment, and they had the right to appeal that determination”;
and the “Second Notices in the 2-Notice Series” do “not simply contain a cross-reference to the previous decision[, but
also] they summarize the findings from those decisions.”
Additionally, OED contends, regarding the Schedules of
Adjustments, that due process “only requires notice that is
‘reasonably calculated’ to inform a party of the ‘pendency of
406 Casillas v. Gerstenfeld
an action,’ not a comprehensive explanation of everything
relevant to that action.”
Having reviewed the record, in connection with
plaintiffs’ fourth assignment of error, we conclude that the
Amended Notices of Determination for PUA and the Wrong
Program Overpayment Notices failed to satisfy due process
because they did not provide adequate notice, but that the
Schedules of Adjustments and the Second Notices in the
2-Notice Series did satisfy due process.
a. Amended Notices of Determination for PUA
We start with the Amended Notices of Determination
for PUA, which, as noted, informed plaintiffs of a change to a prior PUA eligibility determination by OED. Where a determination was made that claimants were not eligible for PUA,
those notices inform claimants that they are “NOT ENTITLED
to PUA Benefits” and provide one of two statements regarding the ineligibility determination: (1) that claimant was “not unemployed, unable to work, or unavailable to work for a
qualifying reason related to the COVID-19 pandemic” or (2)
that claimant was eligible for “a regular unemployment claim,
extension, or extended benefits in Oregon or another state.”
In our view, the Amended Notices of Determination
of PUA fail to satisfy due process, because they do not provide information necessary for plaintiffs to understand the
basis for the agency’s determination that they are ineligible
for PUA and information about how to prepare evidence to
rebut that determination if they decided to do so, but instead largely just restate the eligibility criteria for PUA. Nnebe,
931 F3d at 88 (noting that “part of the function of notice is to give the charged party a chance to marshal the facts in his
defense” (internal quotation marks and brackets omitted));
see also Watkins v. Greene Metro. Hous. Auth., 397 F Supp 3d
1103, 1108-09 (SD Ohio 2019) (“Courts routinely find notice
insufficient where such notice simply parrots the broad language of applicable regulations. This is because such notices
do not alert individuals of the specific behavior that led to
the termination of their benefits, and they are thus unprepared to combat the charges against them.” (Internal quotation marks and citation omitted.)). In essence, the notices
Cite as 352 Or App 389 (2026) 407
inform plaintiffs that they were ineligible because a reason
for ineligibility applies, but they do not provide plaintiffs
any individualized reasons to support the determination: A
claimant would not know from the notices, for example, in
which state OED determined that the claimant was eligible
for “a regular unemployment claim, extension, or extended
benefits,” or what kind of benefits OED had determined the
claimant would be eligible for. See Long, 189 Or App at 61
n 2 (concluding notice informing petitioner that he had been
designated a “predatory sex offender” in part based on petitioner’s “use of weapons or threats” insufficient where it did not “tell him when he allegedly had used any weapons or
threats, whom petitioner allegedly had threatened, or what
he supposedly had said”).
b. Wrong Program Overpayment Notices
Additionally, we conclude that the Wrong Program
Overpayment Notices fell below the standard that due
process requires. As noted, those notices were sent when
“claimants applied for and were initially found eligible for a variety of benefits across multiple programs but were later
found ineligible for a program or a particular claim,” and an
“overpayment resulted when OED moved a claimant’s benefits from an incorrect claim or program to a correct one.”
In the trial court, OED acknowledged that those
notices “did not accurately capture the complex nature of
the agency’s decision-making,” and on appeal OED acknowledges that the “notices did not accurately capture the complex nature of the claim swap process because of pandemic
and technology related impediments.” Although we understand OED’s position and the impediments to providing
accurate information brought about by the pandemic and
the technology OED was then using, we cannot conclude
that providing information that does “accurately capture”
and communicate the agency’s decision-making comports
with due process.
c. Schedules of Adjustments
Regarding the Schedule of Adjustments, we reach
a different conclusion. The Schedules of Adjustments were
sent along with notices of administrative decisions to
408 Casillas v. Gerstenfeld
claimants who OED determined were overpaid. As noted,
the Schedules of Adjustments are tables showing, among
other information, the amount of the overpayment (as calculated by OED). The tables do so by comparing the benefits actually paid to the correct benefit amount for specified weeks.
As a legal matter, we agree with the United States
Court of Appeals for the Seventh Circuit, which has concluded that “the failure of state authorities to provide public assistance recipients with detailed notice, including a breakdown of income and deductions so that the recipients could
determine the accuracy of the computations may be a denial
of due process,” Dilda v. Quern, 612 F2d 1055, 1057 (7th Cir), cert den, 447 US 935 (1980) (internal quotation marks omitted), and we think that logic is applicable to OED’s efforts to “claw back” the unemployment insurance benefits at issue
in this case.
But, having reviewed the Schedules of Adjustments,
although they are not a picture of clarity, we think they
serve to provide adequate notice to satisfy the Mullane standard: They provide information about the benefits received,
what OED believes the correct payments should have been,
and how the overpayment amount was calculated.
d. Second Notices in the 2-Notice Series
Finally, regarding the “Second Notices in the
2-Notice Series,” as noted, those notices informed claimants
of the amount of benefits that OED believed claimants had
been overpaid, after an earlier adverse determination of eligibility had already been made by OED. As to those notices,
we agree with OED that the notices did not “simply contain
a cross-reference to the previous decision,” as plaintiffs contend, but also “summarize the findings from those [previous]
decisions.” For example, the notice plaintiffs point to states that when a particular claimant “filed his/her claim and/or
claimed weekly benefits, claimant failed to disclose a material fact,” namely, “[c]laimant did not disclose that claimant voluntarily left work,” and that the prior administrative
decision determined that claimant had “voluntarily left work
without good cause.” Having considered the Second Notices
Cite as 352 Or App 389 (2026) 409
in the 2-Notice Series, we conclude that they met the “fairly
low” bar for adequate notice to satisfy due process.
In sum, regarding plaintiffs’ fourth assignment of error, we conclude that the Amended Notices of
Determination of PUA and Wrong Program Overpayment
Notices failed to satisfy due process. However, the Schedules
of Adjustments and Second Notices in the 2-Notice Series
did not fail to satisfy due process.
3. Partial English to Spanish translation (OED’s third
through sixth assignments of error on cross-appeal)
In its third through sixth assignments of error on
cross-appeal, OED asserts that the trial court erred in granting partial summary judgment to plaintiffs and denying
OED summary judgment on the basis that certain notices
were “unconstitutional as to Spanish readers who cannot
read English because the notices use partial, but not complete, English-to-Spanish translation.” That determination
related to Claim #2 and Claim #6 in plaintiffs’ complaint.
The notices sent by OED regarding eligibility and
overpayments included partial translations of the text of the
notice from English to Spanish. As explained by the trial
court, the notices translated “all the standard language in
the notices from English to Spanish,” but the “language that
is specific to the claimant, i.e., the language that states why OED determined there had been an overpayment to a particular person[,] that language is in English only.” (Emphasis
in original.) Put another way, the partial translation provided by OED does not include translation of the “Findings
of Fact” section of the notices, which always appears in
English only, although other parts of the notice—largely
boilerplate—is translated into Spanish.
The trial court determined that that was constitutionally deficient but only as to “a recipient who can read
Spanish but could not read English well enough to realize
that not every part of the notice was translated,” which
“necessarily would require an individual inquiry and individualized proof.” In reaching that determination, the trial
court recognized that OED “apparently decided with the best
410 Casillas v. Gerstenfeld
intentions to make the notices multi-lingual to try to make
them more understandable” and that, “had OED provided
notices solely in English, such notice may have been constitutional (at least based on current case law), even if the notice was provided to a person who could not read or understand
any English, because the inability to read any part of the document would have notified the person of a need for further
inquiry.” It concluded, however, that the notices were “unconstitutional as applied to a person who cannot read English”
because they do not “alert the Spanish-only reader that there
is important information in the notice that does not appear
in Spanish but only appears in English” and “[t]he Spanishonly reader would not be on notice that there were portions
that were not translated into Spanish, and thus there would
be no reason to inquire further.” Ultimately, the trial court
determined that the notices were “unconstitutionally confusing because they don’t alert the Spanish-only reader that
there is important information in the notice that does not
appear in Spanish but only appears in English.”6
On appeal, OED argues that the trial court erred
because “[d]ue process does not require OED to provide
unemployment benefits notices in languages other than
English,” “OED’s decisions gave claimants actual notice of
the pendency of the action and the opportunity to object,”
and “Spanish-only readers had inquiry notice of the pendency of the action and the opportunity to object.”
Plaintiffs respond, among other points, that the
“format” used by OED “is difficult to parse for English and
Spanish readers”; that “[e]ven for readers of English, OED’s
notices are notoriously difficult to understand,” and “claimants who read Spanish only are likely to focus on trying to
understand the Spanish-language portions of the notice” but
“will not comb the notice to confirm that all English information is translated”; and OED does “not explain how a claimant would know that the omitted information is important.”
6
In response to the trial court’s ruling, the parties agreed that OED would include the following additional language—which was also approved by the trial court—in its notices if OED continues to provide partial Spanish translations:
“This document includes important information that has not been translated into Spanish. Please see the enclosed information on how to access free
translation services.”
Cite as 352 Or App 389 (2026) 411
We conclude that the trial court did not err in ruling
that the notices at issue are unconstitutional as to “a recipient who can read Spanish but could not read English well
enough to realize that not every part of the notice was translated,” which, as noted by the trial court, “necessarily would require an individual inquiry and individualized proof.” In
reaching that conclusion, we note that the question before
us and the question before the trial court is not whether
due process requires the government to provide notice in a
language other than English, but whether the notice provided fell below the minimum required for due process. We
conclude that it did, as to those individuals who “can read
Spanish” but “could not read English well enough to realize that not every part of the notice was translated.” That
is because the information that was not translated—i.e.,
“language that is specific to the claimant”—was necessary
to satisfy due process, see Vargas v. Trainor, 508 F2d 485,
489-90 (7th Cir 1974), cert den, 420 US 1008 (1975) (holding that due process requires notice “stating the reasons for
the proposed actions” be given to the recipient, and notice
which “merely showed the amounts of the components of
the recipient’s grant, as reduced by the proposed action, and
did not state the reasons for that action” failed to meet the
requirements of the Due Process Clause), and the partial
use of bilingual forms, without informing those recipients
that the document contains important information that had
not been translated, would result in those individuals not
receiving constitutionally adequate notice. That is, the use
of partial bilingual forms in this circumstance, could create greater confusion for certain Spanish speaking individuals. See Walters v. Reno, 145 F3d 1032, 1042 n 4 (9th Cir
1998), cert den, 526 US 1003 (1999) (noting that “[b]ecause
the government elected to provide some information in a
language other than English, however, it created the possibility that the partial use of bilingual forms would result
in greater confusion than if it had used monolingual forms
exclusively”).7
7
As noted, OED asserts that Spanish speakers had “inquiry notice.” As also noted, however, the trial court’s ruling was specific to Spanish speakers who “could not read English well enough to realize that not every part of the notice was translated” and those readers would not have realized the need for further inquiry.
412 Casillas v. Gerstenfeld
Thus, with respect to OED’s third through sixth
assignments of error, we conclude that the trial court did
not err.
B. Adequate Process (OED’s First and Second Assignments
of Error on Cross-Appeal)
In its first and second assignments of error on crossappeal, OED asserts that the trial court erred in granting
partial summary judgment to plaintiffs and “denying OED’s
motion for summary judgment on Claim #1.C.” In that claim,
as described by the trial court, plaintiffs alleged that due
process required OED to “halt efforts to recover overpayments if the Office of Administrative Hearings has found
good cause for [a] late hearing request because at that point
the validity of the overpayment is in legal question.”
By way of background, by statute, Oregon law prohibits recovery of an unemployment insurance overpayment debt before it is “final,” and the debt becomes “final”
if a claimant does not request a hearing within 20 days
after delivery or mailing of the notice from OED informing the claimant of the overpayment. ORS 657.310(4); ORS
657.315(2); ORS 657.269. If a hearing is requested within
20 days by a claimant, the debt is not “final” until after an
administrative law judge issues a decision. ORS 657.270(6).
Claimants who miss the 20-day deadline to request
a hearing may still present challenges to the overpayment
in a hearing if they can show “good cause” for the delay in
requesting a hearing. ORS 657.875. Good cause is defined by
OED rule to mean “when an action, delay, or failure to act
arises from an excusable mistake or from factors beyond an
applicant’s reasonable control,” such as “[f]ailure to receive a document because the Employment Department or Office
of Administrative hearings mailed it to an incorrect address
despite having the correct address.” OAR 471-040-0010(1).
At present, OED continues collection efforts from
claimants who fail to request a hearing within 20 days, even
after a determination has been made that the claimant had
“good cause” for missing the 20-day deadline to request a
hearing.
Cite as 352 Or App 389 (2026) 413
In Claim #1.C in plaintiffs’ complaint, plaintiffs
contended that due process rights are violated when OED
continues collection efforts after “[a] late hearing request
related to the [overpayment] debt was filed, the Office of
Administrative Hearings has found good cause for the late
hearing request, and the appeal has not been resolved on
the merits.”
The parties agree that the applicable standard governing Claim #1.C is set forth in Mathews v. Eldridge, 424
US 319, 96 S Ct 893, 47 L Ed 2d 18 (1976). Under Mathews,
“identification of the specific dictates of due process generally requires consideration of three distinct factors”:
“First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of
such interest through the procedures used, and the probable value, if any, of additional or substitute procedural
safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural
requirement would entail.”
424 US at 335. In applying that standard, we bear in mind
that decisions from the United States Supreme Court
“underscore the truism that due process, unlike some legal
rules, is not a technical conception with a fixed content
unrelated to time, place and circumstances,” and that it
is “flexible,” calling for “such procedural protections as the particular situation demands.” Id. at 334 (internal quotation
marks omitted).
Applying the standard articulated in Mathews,
the trial court granted summary judgment to plaintiffs on
Claim #1.C. Regarding the first Mathews factor—the “private interest that will be affected by the official action”—the trial court determined that that factor weighed in OED’s
favor but “only slightly.” The trial court recognized that
although “unemployment benefits” are “very important
because they are replacing income for a person who is no
longer employed,” and that they may be a “lifeline to many,”
they are not, “as a matter of law, as important as welfare
benefits.” That is because unemployment insurance benefits are not based on “financial need” and are not related to
414 Casillas v. Gerstenfeld
“the worker’s wealth or ability to support themself by other
means.”
Regarding the second Mathews factor—”the risk of
an erroneous deprivation of such interest through the procedures used”—the court determined that that factor weighed
in favor of plaintiffs because “[p]laintiffs have identified
errors in OED’s collections and calculation systems sufficient to show a risk of erroneous deprivation.” It reasoned
that “if a claimant was successful in challenging OED’s decision but in the meantime OED had clawed back the money
from claimant only to be ordered to repay the claimant, the
temporary loss of funds could have a devasting impact on a
claimant who is relying on those funds to survive.”
Finally, regarding the third Mathews factor—”the
Government’s interest, including the function involved and
the fiscal and administrative burdens that the additional
or substitute procedural requirement would entail”—the
trial court determined that that factor weighed in favor of
plaintiffs. The trial court reasoned that OED already tracks
which claimants have timely requested a hearing and does
not collect from those claimants prior to the hearing, and
OED had not “explained how stopping collections efforts
once [the Office of Administrative Hearings] has made a
finding of good cause for a late hearing request would be
any more difficult to track than those claimants who made
a timely request for a hearing.” The trial court noted that
OED “would need to learn when [the Office of Administrative
Hearings] made such a determination” regarding a late
hearing request, but that “OED has not explained how
obtaining such information would be unduly burdensome.”
Based on its weighing of those three factors, the
trial court determined that due process required OED to
stop collection efforts “to recover the disputed amounts until there has been a final resolution of the matter”—i.e., OED
must stop collection efforts when there has been a determination that a claimant had good cause for making a late
hearing request.
On cross-appeal, OED assigns error to that ruling.
It contends “the private interest implicated by OED’s action
Cite as 352 Or App 389 (2026) 415
is not strong under existing case law,” OED’s “existing procedures provide robust safeguards against the risk of erroneous deprivation,” and “the cost and burden of requiring OED
to implement a process to cease collection efforts during the
appellate process outweighs the private interest and risk of
erroneous deprivation.”
Plaintiffs respond, among other points, the trial court
“should have concluded that the first factor”—the private
interests at stake—”weighed in Plaintiffs’ favor, albeit not as heavily as it would have in a case involving a means-tested
anti-poverty benefit”; that the second factor—the risk of an
erroneous deprivation of such interest—weighs in plaintiffs’
favor because the standards “governing unemployment benefits overpayments in Oregon are complex and multi-factor,
relying on a combination of objective and subjective determinations”; and that the third factor—the Government’s interest—weighs in plaintiffs’ favor because “[r]ecord evidence
shows the burden [of pausing collections efforts when a good
cause finding has been made] would be minimal.”
We conclude that the trial court did not err. First,
we agree with the trial court that the “private interest that
will be affected by the official action” is “very important,”
although, as a matter of law, it is less important than if the benefit was a means-tested benefit, such as “welfare.” See
Mathews, 424 US at 342 (recognizing that the “the hardship
imposed upon the erroneously terminated disability recipient
may be significant,” but that “the disabled worker’s need is
likely to be less than that of a welfare recipient”). Indeed,
as noted, the purpose of Oregon’s unemployment insurance
scheme is “[t]o provide a means of living for an unemployed
worker.” McPherson, 285 Or at 556. And one method OED can
and does use to collect purported overpayments is by reducing those benefits, which provide “a means of living.” Suffice it to say that even a temporary deprivation of funds to an
unemployed person could be “devasting” where the person is
“relying on those funds to survive.” See Carr v. SAIF Corp., 65 Or App 110, 121, 670 P2d 1037 (1983), rev dismissed, 297 Or
83 (1984) (recognizing “temporary total disability benefits”
under the Workers’ Compensation Law “are designed to provide a substitute for income lost due to a worker’s temporary
416 Casillas v. Gerstenfeld
inability to otherwise provide for himself” and that “[d]eprivation of compensation, even for a relatively brief period of time, and the resulting possible loss of ability to acquire essential goods and services, may threaten the health and safety of the
worker and his dependents”). Thus, for the reasons just noted, the private interest, we think, is significant.
Considering the second Mathews factor—“the risk
of an erroneous deprivation of such interest through the procedures used”—although we are mindful of OED’s processes
to prevent errors that OED points to on appeal, we disagree
with OED that “the risk of even a temporary erroneous
deprivation is minimal under OED’s existing procedures.”
As the trial court noted, the summary judgment record
reflects the existence of “errors * * * sufficient to show a risk of erroneous deprivation.”
Finally, regarding the third Mathews factor—“the
Government’s interest, including the function involved and
the fiscal and administrative burdens that the additional
or substitute procedural requirement would entail”—we do
not doubt, as OED contends, that requiring OED “to stop
collections on overpayment decisions when OAH, EAB, or
[the Court of Appeals] have determined that a claimant had
good cause to file a late hearing request would impose additional administrative burdens on OED.” But in its affidavits in the record OED indicates that it already monitors
for or is notified of decisions from OAH, EAB, and the Court
of Appeals, and OED has not explained why the additional
administrative burden of pausing collections activity when a
claimant has shown “good cause” for a late hearing request
is particularly significant.
Considering the factors identified in Mathews, we
conclude that the trial court did not err when it determined
that due process requires OED to pause collections efforts
after a determination has been made that a claimant had
“good cause” to request a late hearing—that is, when a claimant’s late request for a hearing was due to “factors beyond a
[claimant’s] reasonable control” or “excusable mistake.”
Consequently, we reject OED’s first and second
assignments of error on cross-appeal.
Cite as 352 Or App 389 (2026) 417
C. Mootness and the “Two-Notice” System (Plaintiffs’
Second and Third Assignments of Error)
Claim #3 in plaintiffs’ complaint asserts that, for
many claimants, OED uses “a series of two written notices
to establish an overpayment: [1] the Underlying Eligibility
Decision and [2] a subsequent Administrative Decision.”
The former of those notices informs claimants of an adverse
determination of eligibility for unemployment benefits,
while the latter “informs a claimant of the amount of benefits OED believes she has been overpaid.” Plaintiffs brought
Claim #3 pursuant to 42 USC section 1983, asserting that
OED’s use of the “two-notice” system violated their due process rights under the Fourteenth Amendment.
Regarding the “two-notice” system, the summary
judgment record reflects that, historically, OED “general[ly]
issued eligibility and overpayment decisions separately,” as
a result of its “legacy computer systems,” which were “antiquated” and were unable to be easily “modified to reflect
the changing needs of the [unemployment insurance] program.” In March 2024, however, OED transitioned to a new
computer system called “Frances,” which, per the summary
judgment record, “will be configured so that eligibility and
overpayment decisions [are] connected” and “will generally be issued in one notice where possible.” OED’s efforts
to transition to a modernized computing platform predated
this litigation.
The trial court dismissed plaintiffs’ Claim #3 as
moot, reasoning that plaintiffs only sought prospective relief and that, “even though OED theoretically could decide to
switch back to a two-notice system unless the Court ordered
it not to, there is no realistic suggestion that OED would do
so because it would only present complications for both OED
and its customers without any benefit.” Therefore, in the
trial court’s view, it was “highly unlikely” that the issue of a two-notice system will arise in the future and the claim did
not meet the requirements of being “capable of repetition”
yet “evading review” under ORS 14.175.8
8
The trial court ruled that other claims by plaintiffs are moot, too. But the trial court also determined that those claims “do meet the standard of being 418 Casillas v. Gerstenfeld
Further, the trial court ruled that the exception to
mootness for “voluntary cessation of illegal activity” was
not applicable because “the record shows that OED is not
switching to the one-notice system for the purpose of evading review; rather, it appears that OED did not want to continue with the two-notice system but was hamstrung about
what it could do about that given the limitations of its mainframe computer system.”
On appeal, in plaintiffs’ second assignment of error,
they assert that “[t]he trial court erred in finding PlaintiffAppellants’ third claim for relief, concerning the use of a
two-notice system to establish overpayments of unemployment benefits, was moot.” In plaintiffs’ third assignment of
error, they assert that “[t]he trial court erred in finding that the use of the two-notice system to establish overpayments
of unemployment benefits was not ‘capable of repetition’
within the meaning of ORS 14.175.”
Specifically, plaintiffs argue that “OED’s stated
intention to make a ‘general’ shift to a single-notice system
‘where possible’ does not moot Plaintiffs’ third claim,” under either state or federal law and that “[p]laintiffs’ challenge to the two-notice system is not moot” even though “[p]laintiffs
have stopped claiming unemployment benefits.” Further,
plaintiffs argue that “the summary judgment record demonstrates that OED will continue to use a series of two notices
to establish overpayments for at least some claimants.”
In response, OED argues that “[p]laintiffs’ request
for prospective relief would have no concrete effect on plaintiffs”; that the “ ‘voluntary cessation’ doctrine” does not apply; and that Claim #3 is not “likely to evade review” under ORS
14.175.
Although the evidence in the summary judgment
record is limited and perhaps could have been more fulsome,
we conclude that the trial court did not err in determining
capable of repetition yet evading review” as set forth in ORS 14.175, and so it considered them.
On appeal, OED did not seek review of the trial court’s ruling that plaintiffs’ other claims “meet the standard” set forth in ORS 14.175. Thus, that issue is not before us.
Cite as 352 Or App 389 (2026) 419
that Claim #3 was moot and that it did not meet the requirements of ORS 14.175.
As an initial matter, because Claim #3 asserted
a claim under 42 USC section 1983, the question of mootness is not only a question of state law: “Oregon courts
cannot apply state standards of mootness and justiciability to a section 1983 claim brought in state court if application of those standards would preclude a plaintiff’s federal claim, but application of federal standards would not.”
Barcik v. Kubiaczyk, 321 Or 174, 185, 895 P2d 765 (1995).
And although it is an open question “whether state standards of mootness and justiciability could be applied to a
section 1983 claim brought in state court if application of
those standards would be more favorable, rather than less
favorable, to a plaintiff,” id. at n 9, we need not answer that question because we conclude that Claim #3 in plaintiffs’
complaint is moot under both state and federal mootness
standards.
“Mootness [is] treated similarly, but not identically,
under Oregon and federal law.” Id. at 182. Under Oregon
law, “[c]ases that are otherwise justiciable, but in which a
court’s decision no longer will have a practical effect on or
concerning the rights of the parties, are moot.” Id. (internal quotation marks omitted). Under federal law, “a case
becomes moot when the issues presented are no longer live
or the parties lack a legally cognizable interest in the outcome.” Id. (internal quotation marks omitted). “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).
Under both the state and federal standard, we
conclude that the trial court did not err in determining
the case had become moot: Granting the prospective relief
requested by plaintiffs—which, as noted, was the only type
of relief that plaintiffs requested—would have no practical
effect on plaintiffs and plaintiffs lack a legally cognizable interest in the outcome. That is because, as plaintiffs
put it, their “known overpayment issues have resolved.”
And so for the prospective relief they request to have any
420 Casillas v. Gerstenfeld
effect on plaintiffs themselves, as OED argues, OED would
have to (1) “revisit an earlier decision involving plaintiffs,” (2) “determine that plaintiffs were overpaid,” and (3) use
the “two-notice system”—which OED has transitioned away
from—“to notify plaintiffs of that overpayment.” That series
of events is speculative, and that sort of speculation does
not prevent the claim from being moot under either state or
federal standards. See, e.g., City News & Novelty, Inc. v. City of Waukesha, 531 US 278, 279, 121 S Ct 743, 148 L Ed 2d
757 (2001) (“[A] live controversy is not maintained by speculation that [plaintiff] might be temporarily disabled from
reentering a business that it has left and currently asserts
no plan to reenter.”).
In arguing that Claim #3 is not moot, plaintiffs
point to what has been described as “the general rule that
voluntary cessation of a challenged practice rarely moots a
federal case.” City News & Novelty, 531 US at 285 n 1. That
“exception” to mootness applies under Oregon law as well.
See Fenimore v. Blachly-Lane County C.E.A., 297 Or App 47,
62, 441 P3d 699 (2019) (“One exception to our mootness doctrine is that the mere voluntary cessation of a challenged
practice in a context in which the practice may be resumed
does not render a claim challenging that practice moot.”
(Internal quotation marks omitted.)). The “voluntary cessation” doctrine “traces to the principle that a party should
not be able to evade judicial review, or to defeat a judgment, by temporarily altering questionable behavior.” City News &
Novelty, 531 US at 285 n 1.
The difficulty with plaintiffs’ reliance on the “voluntary cessation” doctrine in this case is that even if OED resumed issuing two-notices to establish an overpayment, plaintiffs
would not suffer any nonspeculative harm; as noted above,
plaintiffs’ “known overpayment issues have resolved.” As we
understand it, the voluntary cessation exception to mootness
does not prevent a case from becoming moot if resumption of
the challenged conduct would have no effect on the complaining party. See Already, LLC v. Nike, Inc., 568 US 85, 98, 133
S Ct 721, 184 L Ed 2d 553 (2013) (shoemaker’s counterclaim
seeking to invalidate competitor’s trademark was mooted by
competitor entering into covenant not to enforce trademark
Cite as 352 Or App 389 (2026) 421
against shoemaker, because there was “no reasonable risk
that [shoemaker] will be sued again” by competitor); cf. Fed.
Bureau of Investigation v. Fikre, 601 US 234, 242, 144 S Ct 771, 218 L Ed 2d 162 (2024) (determining that “the government’s
representation that it will not relist [plaintiff on a no-fly list] based on ‘currently available information’ may mean that his
past actions are not enough to warrant his relisting,” but that does not speak “to whether the government might relist him if
he does the same or similar things in the future—say, attend
a particular mosque or refuse renewed overtures to serve as
an informant” (emphasis added)).9
Finally, plaintiffs contend that Claim #3, even if
moot, is reviewable because it meets “the standard for ‘capable of repetition, yet evading review’ under ORS 14.175.”10
9
In arguing that Claim #3 is not moot, plaintiffs point to Oregon Natural Resource Council Fund v. Port of Portland, 286 Or App 447, 398 P3d 923 (2017). In that case, we rejected the plaintiff’s assertion that the case had become moot after the trial court ruled in its favor and entered a judgment declaring that the defendant “violated Article I, section 8, of the Oregon Constitution when it rejected a proposed advertisement that plaintiff * * * wanted to run at Portland International Airport.” Id. at 449. On appeal in that case, the plaintiff asserted that the case was moot because “[t]he ad is no longer running, and [plaintiff] no longer wants to run it.” Id. at 455.
We rejected the plaintiff’s argument in Oregon Natural Resource Council Fund, reasoning that, as a result of the judgment in the trial court, the defendant “has a present obligation to accept [the plaintiff’s] advertisement, should [the plaintiff] want to display it,” and “viewed in the context of the pleadings and litigation as a whole, the judgment has the practical effect of allowing [the plaintiff] to submit any political advertisement, because the court ruled that the advertising policy unconstitutionally distinguished between commercial and political speech.” Id. at 456.
But here there is no judgment declaring the rights between the parties with regard to Claim #3; plaintiffs seek prospective relief—e.g., an order directing OED to make systemic changes moving forward—that cannot have a concrete effect on plaintiffs unless a series of speculative events occur. That is fundamentally different than the mootness issue in Oregon Natural Resource Council Fund. Compare City News & Novelty, Inc., 531 US at 284 (case moot where plaintiff business “left the fray [in the trial court] as a loser, not a winner” in its suit against city, and so “dismissal * * * does not keep [the city] under the weight of an adverse judgment”), with City of Erie v. Pap’s A.M., 529 US 277, 288, 120 S Ct 1382, 146 L Ed 2d 265 (2000) (case not moot where business prevailed in the trial court in a suit against a municipality, and the business obtained a judgment that declared a municipal ordinance invalid, because municipality would have been saddled with an “ongoing injury” if the case was dismissed for mootness on appeal, i.e., the judgment barring it from enforcing its ordinance).
10
ORS 14.175 provides:
“In any action in which a party alleges that an act, policy or practice of a
public body, as defined in ORS 174.109, or of any officer, employee or agent of 422 Casillas v. Gerstenfeld
We disagree because, in our view, the challenged policy
or practice, or similar acts—i.e., use of the two-notice system—are not “likely to evade judicial review in the future.”
ORS 14.175(3). In considering that issue, “we are looking at
the type of challenge at issue and not whether the specific
legal issue may be addressed in a different type of challenge
in a different case.” NewSun Energy, LLC v. Public Utility
Comm., 336 Or App 515, 522, 561 P3d 1135 (2024), rev den,
373 Or 815 (2025).
Here, plaintiffs assert that the “[t]he type of challenge at issue” is “an action under 42 USC § 1983” and that,
if “[p]laintiffs’ claims are now moot because their known
overpayment issues have resolved in the nearly three years
since filing, that demonstrates why any similar future
challenge to the 2-notice system is likely to evade judicial
review.”
We disagree with plaintiffs, because under federal
law a “live claim for nominal damages”—such as are available under 42 USC section 1983—“will prevent dismissal
for mootness.” Bernhardt v. Cnty. of Los Angeles, 279 F3d
862, 872 (9th Cir 2002). That is, the federal mootness standard—which we must apply in section 1983 cases if state law
would require dismissal—would permit such a section 1983
claim for nominal damages to proceed, and it would also
permit an associated claim for declaratory relief. See Barcik
v. Kubiaczyk, 321 Or 174, 199, 895 P2d 765 (1995) (plaintiffs’ federal claims against school district for a “declaration that defendants’ conduct * * * was unconstitutional under federal
law, and for nominal damages, [was] not moot” even though
plaintiffs’ had graduated and were no longer students of
the district). The difficulty for plaintiffs in this case is that
a public body, as defined in ORS 174.109, is unconstitutional or is otherwise
contrary to law, the party may continue to prosecute the action and the court
may issue a judgment on the validity of the challenged act, policy or practice
even though the specific act, policy or practice giving rise to the action no
longer has a practical effect on the party if the court determines that:
“(1) The party had standing to commence the action;
“(2) The act challenged by the party is capable of repetition, or the policy
or practice challenged by the party continues in effect; and
“(3) The challenged policy or practice, or similar acts, are likely to evade
judicial review in the future.”
Cite as 352 Or App 389 (2026) 423
they only sought prospective relief and did not seek nominal
damages.
III. CONCLUSION
In sum, on plaintiffs’ appeal, with regard to plaintiffs’ first assignment of error, we conclude that the trial
court erred in determining that “due process does not require
OED to tell claimants what ‘type’ has been assigned to their
overpayment.” Additionally, with regard to plaintiffs’ fourth
assignment of error, we conclude that the trial court erred
in determining that “OED’s overpayment notices contained
sufficient individualized reasons to support the agency’s
decision.” As explained above, certain notices did not. We
reject plaintiffs’ second and third assignments of error.
On OED’s cross-appeal, we reject OED’s first
through sixth assignments of error.
On appeal, affirmed in part, reversed in part and
remanded; on cross-appeal affirmed.