2015 ORS 183.484¹
Jurisdiction for review of orders other than contested cases
  • procedure
  • scope of court authority

(1) Jurisdiction for judicial review of orders other than contested cases is conferred upon the Circuit Court for Marion County and upon the circuit court for the county in which the petitioner resides or has a principal business office. Proceedings for review under this section shall be instituted by filing a petition in the Circuit Court for Marion County or the circuit court for the county in which the petitioner resides or has a principal business office.

(2) Petitions for review shall be filed within 60 days only following the date the order is served, or if a petition for reconsideration or rehearing has been filed, then within 60 days only following the date the order denying such petition is served. If the agency does not otherwise act, a petition for rehearing or reconsideration shall be deemed denied the 60th day following the date the petition was filed, and in such case petition for judicial review shall be filed within 60 days only following such date. Date of service shall be the date on which the agency delivered or mailed its order in accordance with ORS 183.470 (Orders in contested cases).

(3) The petition shall state the nature of the petitioner’s interest, the facts showing how the petitioner is adversely affected or aggrieved by the agency order and the ground or grounds upon which the petitioner contends the order should be reversed or remanded. The review shall proceed and be conducted by the court without a jury.

(4) At any time subsequent to the filing of the petition for review and prior to the date set for hearing, the agency may withdraw its order for purposes of reconsideration. If an agency withdraws an order for purposes of reconsideration, it shall, within such time as the court may allow, affirm, modify or reverse its order. If the petitioner is dissatisfied with the agency action after withdrawal for purposes of reconsideration, the petitioner may refile the petition for review and the review shall proceed upon the revised order. An amended petition for review shall not be required if the agency, on reconsideration, affirms the order or modifies the order with only minor changes. If an agency withdraws an order for purposes of reconsideration and modifies or reverses the order in favor of the petitioner, the court shall allow the petitioner costs, but not attorney fees, to be paid from funds available to the agency.

(5)(a) The court may affirm, reverse or remand the order. If the court finds that the agency has erroneously interpreted a provision of law and that a correct interpretation compels a particular action, it shall:

(A) Set aside or modify the order; or

(B) Remand the case to the agency for further action under a correct interpretation of the provision of law.

(b) The court shall remand the order to the agency if it finds the agency’s exercise of discretion to be:

(A) Outside the range of discretion delegated to the agency by law;

(B) Inconsistent with an agency rule, an officially stated agency position, or a prior agency practice, if the inconsistency is not explained by the agency; or

(C) Otherwise in violation of a constitutional or statutory provision.

(c) The court shall set aside or remand the order if it finds that the order is not supported by substantial evidence in the record. Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding.

(6) In the case of reversal the court shall make special findings of fact based upon the evidence in the record and conclusions of law indicating clearly all aspects in which the agency’s order is erroneous. [1975 c.759 §16; 1979 c.284 §121; 1979 c.593 §25a; 1985 c.757 §3; 1999 c.113 §1]

Notes of Decisions

The circuit court has jurisdic­tion to hear a claim that the pro­ceed­ing was a proper case for a contested case hearing but was not so con­ducted. Buena Dairy Associates v. State Dept. of Agriculture, 25 Or App 381, 549 P2d 689 (1976)

The circuit court has no jurisdic­tion to review agency orders that trigger the availability of a contested case hearing, and that are subject to modifica­tion in such an agency pro­ceed­ing. Bay River v. Environ­mental Quality Comm., 26 Or App 717, 554 P2d 620 (1976), Sup Ct review denied

Procedures for judicial review provided by this sec­tion are exclusive means for review of LCDC orders under ORS 197.251 (Compliance acknowledgment) acknowledging local comprehensive plans. Oregon Business Planning Council v. LCDC, 290 Or 741, 626 P2d 350 (1981)

Acknowledg­ment order was remanded where LUBA opinion construing Goal 5 became "officially stated agency posi­tion" when it was adopted by LCDC; County failed to cure deficiencies in plan as identified by LUBA and adopted by LCDC; and LCDC did not explain inconsistency between interpreta­tion of Goal 5 in adopted LUBA opinion and its decision to acknowledge. Coats v. LCDC, 67 Or App 504, 679 P2d 898 (1984)

Environ­mental Quality Commission pro­ceed­ing denying applica­tion for solid waste pollu­tion control facility tax credit certificate is not contested case pro­ceed­ing and therefore, jurisdic­tion for review is conferred on circuit court. Linnton Plywood Assoc. v. DEQ, 68 Or App 412, 681 P2d 1180 (1984), Sup Ct review denied

Challenge to decision of Secretary of State re­gard­ing compliance with "one-subject rule" of Oregon Constitu­tion must be filed within reasonable time period that commences upon approval of peti­tion for ballot title. Ellis v. Roberts, 302 Or 6, 725 P2d 886 (1986)

State Health Planning and Develop­ment Agency decision that medical center proposal to convert acute care beds to skilled nursing facility beds was subject to certificate of need review was preliminary agency decision and not reviewable final order. Merle West Medical Center v. SHPDA, 94 Or App 148, 764 P2d 613 (1988)

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)

Substantial evidence supported order by Depart­ment of General Services that bidder on contract failed to meet Minority Business Enterprise and Women Business Enterprise subcontracting goals, and circuit court erred in applying de novo review standard. Keeton-King Construc­tion v. State of Oregon, 105 Or App 41, 802 P2d 711 (1990), as modified by 106 Or App 663, 809 P2d 708 (1991)

Notice of rule change issued under ORS 183.355 (Filing and taking effect of rules) is not "order" under ORS 183.310 (Definitions for chapter), and judicial review is not available under this sec­tion. Calif. Table Grape Comm'n v. Dept. of Human Res., 109 Or App 222, 818 P2d 983 (1991)

Reasonable time for filing preelec­tion challenge may be less than 60 days in some circumstances. State ex rel Keisling v. Norblad, 317 Or 615, 860 P2d 241 (1993)

Reasonable time period for filing challenge based on single subject rule begins with certifica­tion of ballot title in case of initiative peti­tion, or effective date of legisla­tion ordering place­ment on ballot in case of referred measures. State ex rel Keisling v. Norblad, 317 Or 615, 860 P2d 241 (1993)

Legislature may specify reasonable period for filing constitu­tional challenges to time-sensitive legisla­tion. State ex rel Keisling v. Norblad, 317 Or 615, 860 P2d 241 (1993)

Organiza­tion bringing ac­tion must itself be adversely affected or aggrieved by decision and may not assert standing based solely on its representa­tion of other per­sons who have standing. Local No. 290 v. Dept. of Environ­mental Quality, 323 Or 559, 919 P2d 1168 (1996)

Circuit court acts as record-making court and is not confined to considera­tion of evidence relied upon by agency. Norden v. Water Resources Dept., 158 Or App 127, 973 P2d 910 (1999), aff'd329 Or 641, 996 P2d 958 (2000)

Maximum time limit for preelec­tion challenge to ac­tion or inac­tion of Secretary of State with respect to elec­tion laws is 60 days. Sizemore v. Keisling, 164 Or App 80, 990 P2d 351 (1999), Sup Ct review denied

Review con­ducted under authority of this sec­tion is premised on existence of final agency order; therefore process for challenging nonfinal order is by other means, such as seeking injunc­tion. Oregon Health Care Associa­tion v. Health Division, 329 Or 480, 992 P2d 434 (1999)

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)


1 Legislative Counsel Committee, CHAPTER 183—Administrative Procedures Act; Legislative Review of Rules; Civil Penalties, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors183.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 183, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano183.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.