ORS 183.482
Jurisdiction for review of contested cases

• procedure
• scope of court authority

See also annotations under ORS 183.480 in permanent edition.

Notes of Decisions

Under Former Similar Statute (Ors 183.470)

In cases where evidence not included in the findings of fact is uncontroverted remand to the referee to make findings of fact is unnecessary and the reviewing court has the power to consider such evidence in its opinion. Michelet v. Morgan, 11 Or App 79, 501 P2d 984 (1972)

Right to judicial review of an administrative hearing was an adequate remedy at law, so mandamus would not be to quash service in that hearing. Phillips v. Layman, 15 Or App 107, 514 P2d 1352 (1973)

Court was unable to review contested case arising under ORS chapter 471 in the absence of appropriate administrative rules and standards. Sun Ray Drive-in Dairy, Inc. v. Ore. Liquor Control Comm., 16 Or App 63, 517 P2d 289 (1973)

Whether an administrative hearing should or should not have been a contested case is a question properly reviewed by the circuit court. Northwest Environmental Defense Center v. Mid-Willamette Air Pollution Authority, 16 Or App 638, 519 P2d 1271 (1974), Sup Ct review denied

Failure to cite in the order revoking petitioner's liquor license the administrative regulation upon which it was based was more than an error in procedure and required that the proceeding be remanded. Haviland Hotels v. Ore. Liquor Control Comm., 20 Or App 110, 530 P2d 1259 (1975)

Designation by the Public Employe Relations Board of an appropriate bargaining unit is not a "final order" so as to be subject to appeal. Klamath County v. Laborers Intl. Union of No. Am., 21 Or App 281, 534 P2d 1169 (1975)

Petitioner's objections to the limited scope of the hearing did not and could not enlarge the scope of the hearing and revitalize contentions that were already waived by previous failure to make a request for a hearing thereon. Whitmire v. Ore. State Bd. of Chiropractic Examiners, 21 Or App 139, 533 P2d 1375 (1975), Sup Ct review denied

In General

Appeal procedures established by Administrative Procedures Act were sufficient to sustain delegation of legislative authority made by [former] ORS 487.475, notwithstanding that rule promulgated pursuant to that section did not provide appeal safeguards. Bercot v. Oregon Transportation Commission, 31 Or App 449, 570 P2d 1195 (1977)

Notice to physician, stating that hearing was to consider revocation of his license on grounds that he had "consistently prescribed dangerous drugs" where they were not medically indicated, was sufficient to properly inform him of nature of proceeding against him, notwithstanding that notice failed to make reference to particular sections of statutes as required by ORS 183.415. Bennett v. Board of Medical Examiners, 31 Or App 467, 570 P2d 986 (1977), Sup Ct review denied

Upon appeal, court does not weigh evidence to assess its degree of persuasiveness, but only examines record for existence of substantial evidence. Burton v. Board of Dental Examiners, 31 Or App 1045, 571 P2d 1295 (1977), Sup Ct review denied

An intervenor in an action under the energy facility siting act, ORS 469.300 to 469.570 and 469.992, has standing to seek judicial review of the agency action on any issue presented, subject to the requirements of this section as long as he can show he was adversely affected or aggrieved. Marbet v. Portland General Electric, 277 Or 447, 561 P2d 154 (1977)

Court of Appeals reviews only for errors of law and substantial evidence and does not perform administrative agency's role of weighing evidence. Dach v. Employment Division, 32 Or App 433, 574 P2d 684 (1978)

In contested case appeal arising under [former] ORS 197.310, sole remedy is direct appeal to Court of Appeals, and thus circuit court did not have jurisdiction to review, in declaratory judgment proceedings, LCDC orders issued with respect to review proceeding conducted pursuant to [former] ORS 197.300. Marion Cty. v. State ex rel LCDC v. 1000 Friends, 35 Or App 443, 582 P2d 17 (1978), Sup Ct review denied

Record did not establish that employer's substantial rights were prejudiced by referee's refusal to allow employer to call claimant as witness or cross-examine her beyond scope of direct examination where employer failed to object or show what evidence it would elicit if unlimited examination were allowed. Pac. N.W. Bell v. Emp. Div., 37 Or App 843, 588 P2d 654 (1978)

Meaningful review of Board of Medical Examiner's order revoking physician's license was not possible where order lacked explanation of principles and reasoning employed in reaching conclusion that probation condition had been violated. Stalder v. Bd. of Medical Examiners, 37 Or App 853, 588 P2d 659 (1978)

Employment Relations Board's determination that dismissal of employee for insubordination was in good faith and for cause was not supported by findings of fact on issue of good faith of officials responsible for transfer order. Ashman v. Children's Services Division, 37 Or App 865, 588 P2d 665 (1978)

Where there was some testimony that petitioner was retarded and aggressive, there was substantial evidence to support finding that he was suffering from mental disease or defect and was dangerous to himself and others. Valleur v. Psychiatric Review Board, 43 Or App 843, 604 P2d 439 (1979)

Under ORS 657.176, it was Employment Division's responsibility to develop criteria for "good cause" to leave employment, subject to review under this section whether its assessment of kinds of reasons that are "good cause" is "unlawful in substance." McPherson v. Employment Division, 285 Or 541, 591 P2d 1381 (1979)

Where dismissed teacher filed appeal more than 60 days after service of Fair Dismissal Appeals Board's order affirming school district's dismissal, but within 60 days after denial of petition for reconsideration or rehearing by board, appeal was timely filed under this section. Vorm v. School Dist. No. 40, 45 Or App 225, 608 P2d 193 (1980)

Where Board of Dental Examiners "erroneously interpreted a provision of law" in revoking dentist's license, error could not be cured on remand and this section required that board's order be reversed. Megdal v. Board of Dental Examiners, 288 Or 293, 605 P2d 273 (1980)

This section does not contemplate that court on judicial review of one agency's final order consider whether another agency acted improperly or erroneously interpreted the law. West Side Sanitary Dist. v. Health Div., 289 Or 417, 614 P2d 1151 (1980)

Where agency withdraws order for reconsideration but fails to issue new order, appellate court may reinstate original order for purpose of conducting review. Van Gordon v. Oregon State Board of Dental Examiners, 52 Or App 749, 629 P2d 848 (1981)

Proceedings for acknowledgment of local comprehensive plans are not contested cases subject to review under this section. Oregon Business Planning Council v. LCDC, 290 Or 741, 626 P2d 350 (1981)

Where agency must draw inferences, appellate review examines whether agency has stated facts and rational basis for drawing inference. City of Roseburg v. Roseburg City Firefighters, 292 Or 266, 639 P2d 90 (1981)

Aggrieved party may appeal state agency's action to Court of Appeals pursuant to this section and ORS 183.480, even though agency action is land use decision but aspects of decision in which "agency is required to apply the goals" are within exclusive jurisdiction of LUBA and will not be reviewed in first instance by Court of Appeals. Kalmiopsis Audubon Soc. v. Division of State Lands, 66 Or App 810, 676 P2d 885 (1984)

Order of Employment Appeals Board that claimants were not entitled to receive unemployment benefits because unemployment was "due to labor dispute" was not supported by substantial evidence. Cropley v. Employment Division, 72 Or App 93, 694 P2d 1025 (1985), Sup Ct review denied

In case before Employment Appeals Board, it was question of law whether petitioner's work was "subject employment." White v. Employment Division, 72 Or App 163, 694 P2d 1009 (1985), as modified by 77 Or App 35, 711 P2d 196 (1985)

Requirement for remand where exercise of discretion is inconsistent with rule, officially stated agency policy or prior practice does not require agencies to support consistency of rulings with substantial evidence in record, but requires only that appellate court remand order upon clear showing of unexplained inconsistency. Assoc. of Engineering Employes v. Dept. of Trans., 72 Or App 371, 695 P2d 961 (1985)

Where, after petition for judicial review was filed, and agency issued order granting reconsideration but not expressly withdrawing prior order, petitioner was not required to file amended petition for review and Court of Appeals had jurisdiction of case. Fischer v. SAIF, 76 Or App 656, 711 P2d 162 (1985)

Agency's failure to follow contested case procedures requires remand where its order did not make clear what were findings of fact based on evidence and what were conclusions of law. C&C Construction v. Senior Services Division, 82 Or App 682, 728 P2d 962 (1986)

Energy Facility Siting Council order determining that council lacks authority to require site certificate in particular case is, in effect, "rejection" of application for certificate, and Supreme Court has jurisdiction, under statute, for direct review. Forelaws on Board v. Energy Fac. Siting Council, 303 Or 541, 738 P2d 973 (1987)

Substantial evidence supported Employment Appeals Board finding that work period missed by employee on Saturday was informal arrangement and not mandatory overtime and EAB could properly find that absences were "isolated instances of poor judgment" or "good faith errors." Mail-Well Envelope Co. v. Emp. Div., 98 Or App 271, 779 P2d 178 (1989)

Where hearings officer relied solely on one statement of petitioner while ignoring several other statements that petitioner made to contrary, decision that petitioner was employable was unreasonable and not supported by substantial evidence. Matney v. Adult and Family Services Division, 99 Or App 513, 783 P2d 528 (1989)

Where referee ruled that employer had not shown "good cause" to justify untimely filing of medical report, referee acted within delegated range of discretion. Parkview Nursing Home v. Griggs, 100 Or App 659, 788 P2d 472 (1990)

Finding that employer would not allow claimant to continue to work is not supported by substantial evidence because fact that claimant agreed to termination date undermines evidence. J.R. Simplot Co. v. Employment Div., 102 Or App 523, 795 P2d 579 (1990)

In cases where evidence is rejected or disregarded by referee and such action purports to be based on facts, it is appropriate for reviewing court to examine whether referee's decision to disregard or discount evidence in record is supported by substantial evidence not whether substantial evidence supports claimant's claim. Garcia v. Boise Cascade Corp., 309 Or 292, 787 P2d 884 (1990)

Where Board of Parole overrode one of two minimum sentences but refused to consider evidence in mitigation on basis that it "was not directly related to the circumstances surrounding the crime," board erred and refusal was inconsistent with board rules. Calderon-Pacheco v. Board of Parole, 309 Or 454, 788 P2d 1001 (1990)

To recover costs when agency withdraws order, party must show some modification or reversal of order in party's favor, not just that order was withdrawn. Kilham Stationery v. National Council on Comp. Ins., 109 Or App 545, 820 P2d 842 (1991)

Employment Relations Board Correctly Interpreted Provisions of Collective Bargaining Agreement and Substantial Evidence Supported Board's Conclusions That

1) employee's dismissal was based on course of conduct; 2) employee was given progressive discipline; and 3) disciplinary notices sent to employee complied with provisions of collective bargaining agreement. OSEA v. Rainier School Dist. No. 13, 311 Or 188, 808 P2d 83 (1991)

Hearsay evidence alone, even if inadmissible in civil or criminal trial, is not incapable of being "substantial evidence" under this section. Reguero v. Teacher Standards and Practices Comm., 312 Or 402, 822 P2d 1171 (1991)

In Assessing Whether Hearsay Evidence Constitutes Substantial Evidence, Case Specific Inquiry Is Necessary to Determine Circumstances That Include

1) alternatives to relying on hearsay; 2) importance of hearsay to outcome; 3) existence of supporting or opposing evidence; 4) impact of inability to cross-examine; and 5) consequences of decision. Reguero v. Teacher Standards and Practices Comm., 312 Or 402, 822 P2d 1171 (1991)

If petition for judicial review is filed and agency withdraws order and issues order on reconsideration, petitioner need not file amended petition for judicial review if changes to original order were minor. Nida v. Bureau of Labor and Industries, 112 Or App 1, 826 P2d 1045 (1992)

Court of Appeals does not have authority to remand case without also reversing decision of Workers' Compensation Board where corrected interpretation of law does not compel a particular action. SAIF Corporation v. Basham, 112 Or App 6, 827 P2d 204 (1992)

When basic facts established nurse suffered from personality and sexual disorders and nurse no longer sought treatment for disorder, Board of Nursing could reasonably deduce ultimate fact that nurse would likely invade privacy and offend dignity of patients. Miller v. Board of Nursing, 115 Or App 84, 836 P2d 749 (1992), Sup Ct review denied

Where Office of Health Policy (OHP) found that hospital MRI project did not exceed statutorily imposed financial threshold requiring certificate of need, OHP made no decision subject to provisions for judicial review of contested case. Mercy Medical Center v. Office of Health Policy, 121 Or App 587, 855 P2d 1156 (1993)

Costs recoverable by petitioner include prevailing party fee under ORS 20.190. Voelz Oil v. Oregon State Fire Marshal, 138 Or App 100, 907 P2d 251 (1995)

In determining whether it has jurisdiction, Court of Appeals must consider any attachments to notice or petition and give party filing notice or petition benefit of all favorable inferences that may be drawn from notice or petition or from attachments. Ososke v. DMV, 320 Or 657, 891 P2d 633 (1995)

Agency expertise does not merit granting of deference in reviewing decision for substantial evidence. Drew v. PSRB, 322 Or 491, 909 P2d 1211 (1996)

Agency that is not required to make findings of fact must still include some explanation connecting evidence in record with result reached by agency. Martin v. Board of Parole, 327 Or 147, 957 P2d 1210 (1998)

Review conducted under authority of this section is premised on existence of final agency order; therefore process for challenging nonfinal order is through circuit court action. Oregon Health Care Association v. Health Division, 329 Or 480, 992 P2d 434 (1999)

Requirement that petitioner recite basis for standing has no application to petitions challenging validity of administrative rule. Lovelace v. Board of Parole and Post-Prison Supervision, 183 Or App 283, 51 P3d 1269 (2002)

"Showing" of irreparable injury means demonstration that irreparable injury is at least probable if stay is denied. Arlington School District No. 3 v. Arlington Education Association, 184 Or App 97, 55 P3d 546 (2002)

"Irreparable injury" means injury that cannot reasonably be remedied in court of law. Arlington School District No. 3 v. Arlington Education Association, 184 Or App 97, 55 P3d 546 (2002)

"Colorable claim of error" means claim of error that is substantial and nonfrivolous or seemingly valid, genuine or plausible. Bergerson v. Salem-Keizer School District, 185 Or App 649, 60 P3d 1126 (2003)

Board of Parole and Post-Prison Supervision's reliance on psychologists' written reports would permit reasonable person to make same finding that board made regarding present severe emotional disturbance. Mendacino v. Board of Parole, 287 Or App 822, 404 P3d 1048 (2017), Sup Ct review denied

Because emergency license suspension hearing had less consequence than permanent license suspension, first hearing did not provide accused "full and fair opportunity to be heard" to enable hearings board to apply claim preclusion and issue summary determination against accused over accused's request for new contested case hearing. Miller v. Board of Psychologist Examiners, 289 Or App 34, 407 P3d 935 (2017)

Order was not supported by substantial reason when agency merely stated facts and resulting legal conclusions without providing reasoning demonstrating how agency arrived at those conclusions. Lockett v. Teacher Stds. & Practices Comm'n, 289 Or App 593, 412 P3d 229 (2017)

Completed Citations

Butler v. Ins. Dept., 6 Or App 241, 487 P2d 103 (1971), Sup Ct review denied

Law Review Citations

Under Former Similar Statute (Ors 183.480)

10 WLJ 373 (1974); 67 OLR 864 (1988)

See annotations under ORS chapter 183.

Notes of Decisions

A legislative delegation of power in terms as broad as those used in [former] ORS 471.295 (1) places upon the administrative agency a responsibility to establish standards by which the law is to be applied. Sun Ray Drive-in Dairy, Inc. v. Ore. Liquor Control Comm., 16 Or App 63, 517 P2d 289 (1973)

Administrative regulation providing that failure to perform responsibilities adequately was a ground for employee's dismissal. Palen v. State Bd. of Higher Educ., 18 Or App 442, 525 P2d 1047 (1974), Sup Ct review denied

Where it was determined that agency invalidly terminated substantive policy, trial court did not have authority to order agency to resume policy in absence of validly adopted agency rule. Burke v. Children's Services Division, 39 Or App 819, 593 P2d 1262 (1979), aff'd 288 Or 533, 607 P2d 141 (1980)

"Trending factors" published by the Department of Revenue and used to appraise property for purposes of property taxation are not "rules" within the meaning of this chapter. Borden Inc. v. Dept. of Rev., 286 Or 567, 595 P2d 1372 (1979)

Appellate court may review proceeding meeting definition of contested case whether or not proceeding was formal administrative hearing. Patton v. State Bd. of Higher Ed., 293 Or 363, 647 P2d 931 (1982)

Circuit court could not entertain action for declaratory judgment directed at PERS, because PERS is subject to APA, which provides exclusive method for review of its actions. FOPPO v. County of Marion, 93 Or App 93, 760 P2d 1353 (1988), Sup Ct review denied

Board of Education approval of textbook for use in state public schools was not "rule," but was "order in other than contested case," and jurisdiction for judicial review is in circuit court. Oregon Env. Council v. Oregon State Bd. of Ed., 307 Or 30, 761 P2d 1322 (1988)

Preponderance of evidence standard applies where initial license application is denied based on willful fraud. Sobel v. Board of Pharmacy, 130 Or App 374, 882 P2d 606 (1994), Sup Ct review denied

Completed Citations

Wright v. Bateson, 5 Or App 628, 485 P2d 641 (1971), Sup Ct review denied, cert. denied, 405 US 930 (1972)

Atty. Gen. Opinions

State Speed Control Board subject to Administrative Procedures Act, (1974) Vol 36, p 1024; proxy voting at board meeting, (1974) Vol 36, p 1064; student conduct proceedings as "contested cases," (1976) Vol 37, p 1461; rulemaking authority of Statewide Health Coordinating Council and of Certificate of Need Appeals Board, (1977) Vol 38, p 1229; Oregon Medical Insurance Pool is fundamentally private-sector body, under virtually total private control, created by state to fulfill public purpose and is not state agency or public body subject to Administrative Procedures Act (APA), (1989) Vol 46, p 155

Law Review Citations

51 OLR 245 (1971); 53 OLR 364, 365 (1974); 10 WLJ 373, 420 (1974); 13 WLJ 499, 517, 525, 537 (1977); 57 OLR 334 (1978); 22 WLR 355 (1986); 36 WLR 219 (2000)