Awarding costs and attorney fees when finding for petitioner
Mentioned in
Agency Policy Challenges: A Different Way to Fight an Assessment
“Interestingly, tax cases do not often take advantage of these administrative challenges. This is surprising when ambiguities in tax statutes are generally construed against the state, giving taxpayers an advantage…”
Bibliographic info
Source:
Section 183.497 — Awarding costs and attorney fees when finding for petitioner, https://www.oregonlegislature.gov/bills_laws/ors/ors183.html.
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)
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