Administrative Procedures Act

ORS 183.497
Awarding costs and attorney fees when finding for petitioner


(1)

In a judicial proceeding designated under subsection (2) of this section the court:

(a)

May, in its discretion, allow a petitioner reasonable attorney fees and costs if the court finds in favor of the petitioner.

(b)

Shall allow a petitioner reasonable attorney fees and costs if the court finds in favor of the petitioner and determines that the state agency acted without a reasonable basis in fact or in law; but the court may withhold all or part of the attorney fees from any allowance to a petitioner if the court finds that the state agency has proved that its action was substantially justified or that special circumstances exist that make the allowance of all or part of the attorney fees unjust.

(2)

The provisions of subsection (1) of this section apply to an administrative or judicial proceeding brought by a petitioner against a state agency, as defined in ORS 291.002 (Definitions), for:

(a)

Judicial review of a final order as provided in ORS 183.480 (Judicial review of agency orders) to 183.484 (Jurisdiction for review of orders other than contested cases);

(b)

Judicial review of a declaratory ruling provided in ORS 183.410 (Agency determination of applicability of rule or statute to petitioner); or

(c)

A judicial determination of the validity of a rule as provided in ORS 183.400 (Judicial determination of validity of rule).

(3)

Amounts allowed under this section for reasonable attorney fees and costs shall be paid from funds available to the state agency whose final order, declaratory ruling or rule was reviewed by the court. [1981 c.871 §1; 1985 c.757 §5]
Note: 183.497 (Awarding costs and attorney fees when finding for petitioner) was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 183 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

Notes of Decisions

Under Former Similar Statute (Ors 183.495)

Where agency acts as disinterested adjudicatory tribunal, reversal of agency decision does not entitle prevailing party to attorney fees. Wasco County v. AFSCME, 31 Or App 765, 571 P2d 549 (1977), Sup Ct review denied

Attorney fees will generally be awarded if agency order is not supported by substantial evidence or if agency has erroneously interpreted unambiguous statute, interpreted ambiguous statute in unreasonable manner, or exceeded the scope of agency discretion due to unreasonable interpretation of statute or ignorance of limits on agency discretion. Van Gordon v. Board of Dental Examiners, 63 Or App 561, 666 P2d 276 (1983)

Attorney fees will generally not be awarded if agency interpretation of statute or rule was incorrect but reasonable, or where agency made procedural mistake that was not willful or of constitutional magnitude. Van Gordon v. Board of Dental Examiners, 63 Or App 561, 666 P2d 276 (1983)

No authorization is provided for award of fees for court proceedings ancillary to administrative action under review, or fees generated by administrative actions themselves, but only fees incurred in appealing the decision. Van Gordon v. Board of Dental Examiners, 63 Or App 561, 666 P2d 276 (1983)

Where agency action on remand is discretionary, attorney fees will not be awarded. Oregon Education Association v. Eugene School District 4J, 63 Or App 575, 666 P2d 272 (1983)

Where agency reconsiders and reverses order while judicial review is pending and petition is dismissed, petitioner is not entitled to recover costs. Nichols v. AFSD, 71 Or App 201, 691 P2d 518 (1984)

In General

Where pivotal issue on the merits was whether petitioner, who had gone through marriage ceremony that was subsequently determined to be invalid, was nonetheless "ceremonially married" for purposed of AFS rule, it was obvious that reasonable minds could differ as to the answer and thus the division's adoption of that view was reasonable although legally incorrect and petitioner was not entitled to attorney fees under this statute. Baptist v. Adult and Family Services Div., 64 Or App 265, 668 P2d 428 (1983)

For petitioner to qualify for award of attorney fees and expenses, agency must have actively opposed petitioner and relief granted must substantially alter or invalidate significant portion of agency order in manner that is expected to benefit petitioner. Johnson v. Employment Div., 64 Or App 276, 668 P2d 416 (1983), Sup Ct review denied; Kusyk v. Water Resources Dept., 164 Or App 738, 994 P2d 798 (2000)

In contested case context if final order is deficient in either fact or law attorney fees may be awarded under this section. Douglass v. AFSD, 64 Or App 439, 668 P2d 1232 (1983)

Petition for attorney fees was denied where legal issues presented by underlying case were relatively novel, precedent was not dispositive and there were salutary purposes to be served by act Commissioner was enforcing so that Commissioner's actions were reasonable although wrong. Civil Service Bd of Portland v. Bureau of Labor, 67 Or App 729, 680 P2d 16 (1984)

When agency's function in case has been solely that of disinterested adjudicator, no award of attorney fees is appropriate. Pierce v. Douglas School Dist. No. 4, 68 Or App 1, 680 P2d 654 (1984)

Where agency reconsiders and reverses order while judicial review is pending and petition is dismissed, petitioner is not entitled to recover costs. Nichols v. AFSD, 71 Or App 201, 691 P2d 518 (1984)

Judicial review proceeding is "against a state agency" if agency was "real protagonist" either before or on review. Hoard v. Employment Division, 82 Or App 718, 729 P2d 593 (1986)

Where agency did not participate in making, and did not attempt to defend, decision leading to review, petitioner is not entitled to attorney fees under this section because agency not "real protagonist." Hoard v. Employment Division, 82 Or App 718, 729 P2d 593 (1986)

Costs in workers' compensation cases are not controlled by this section because judicial review of those cases is as provided in workers' compensation statutes, not administrative procedures act. Compton v. Weyerhaeuser Co., 302 Or 366, 730 P2d 540 (1986)

Subject matter jurisdiction over award of costs blocked collateral attack or prior erroneous judgment. Callahan v. Employment Division, 97 Or App 234, 776 P2d 21 (1989)

Where reasonable minds could differ as to scope of law, Employment Division's action did not lack reasonable basis in law or fact and petitioner was not entitled to attorney fees. North Pacific Supply Co., Inc. v. Emp. Div., 100 Or App 553, 787 P2d 495 (1990), Sup Ct review denied

Court decision rendered on procedural grounds without addressing ultimate merits of claim may be decision "in favor of" petitioner. Kaib's Roving R.Ph. Agency, Inc. v. Employment Department, 338 Or 433, 111 P3d 739 (2005)

Court finds in favor of petitioner if significant portion of order petitioner challenges is altered or invalidated to benefit or apparent benefit of petitioner, regardless of whether petitioner is prevailing party. G.A.S.P. v. Environmental Quality Commission, 222 Or App 527, 195 P3d 66 (2008)

Objective reasonableness of agency action does not preclude discretionary award of attorney fees where totality of criteria under ORS 20.075 supports award. G.A.S.P. v. Environmental Quality Commission, 222 Or App 527, 195 P3d 66 (2008)

§§ 183.310 to 183.550

See annotations under ORS chapter 183.

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)


Source

Last accessed
Jun. 26, 2021