2017 ORS 183.497¹
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 (Factors to be considered by court in awarding attorney fees) supports award. G.A.S.P. v. Environ­mental Quality Commission, 222 Or App 527, 195 P3d 66 (2008)

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; Review of Rules; Civil Penalties, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors183.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 183, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano183.­html (2017) (last ac­cessed Mar. 30, 2018).
 
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.