Opinion · Orlaw Oregon

NICHOLS v. AFSD, 71 Or. App. 201 (1984)

691 P.2d 518

Type
Opinion
Court
Orlaw Oregon
Jurisdiction
Orlaw
Date
1984-11-28
Topic
general

NICHOLS v. AFSD, 71 Or. App. 201 (1984) 691 P.2d 518 NICHOLS, Petitioner, v. ADULT AND FAMILY SERVICES DIVISION, Respondent. 5-2201-AK4540-6; CA A30823Oregon Court of Appeals. On petitioner's bill of costs and disbursements filed August 7, no costsallowed November 28, 1984 Stephen J.

Citator

UpLaw has not yet analyzed NICHOLS v. AFSD, 71 Or. App. 201 (1984). The absence of a flag is not a finding that it is good law.

NICHOLS v. AFSD,71 Or. App. 201(1984)
691 P.2d 518
NICHOLS,Petitioner,v. ADULT AND FAMILY SERVICES DIVISION,Respondent.
5-2201-AK4540-6; CA A30823
Oregon Court of Appeals.
On petitioner's bill of costs and disbursements filed August 7, no costs
allowed November 28, 1984
Stephen J. R. Shepard, Lane County Legal Aid Service, Eugene, for the statement.

Dave Frohnmayer, Attorney General, James E. Mountain, Jr., Solicitor General, and Margaret E. Rabin, Assistant Attorney General, Salem, appeared contra.
Before Warden, Presiding Judge, and Van Hoomissen and Young, Judges.
WARDEN, P. J.

No costs allowed.Page 202

[EDITORS' NOTE: THIS PAGE IS BLANK.]Page 203
WARDEN, P. J.
This matter is before the court on respondent's opposition to petitioner's statement of costs and disbursements. The issue is whether, after dismissal of a petition for judicial review in a contested case under the Administrative Procedures Act (ORS chapter 183), the petitioner is entitled to recover costs and disbursements as a prevailing party. We conclude that he is not.

Petitioner sought judicial review pursuant to ORS183.480of a final order of the Adult and Family Services Division that found him to be no longer eligible for General Assistance. After he had filed his opening brief, AFSD withdrew its order for purposes of reconsideration and issued a revised order, reversing its earlier decision and restoring to petitioner the benefits he claimed. After the revised order on reconsideration had been filed in this court, the Records Administrator advised petitioner's counsel: "If an amended petition for judicial review is not filed on or before August 20, 1984, the petition will be dismissed for lack of prosecution * * *." By letter dated August 14, petitioner's counsel responded, "[W]e have no objection to the Petition being dismissed." We deemed that letter to be a motion to dismiss and allowed it.

Petitioner relies on ORAP 11.05 and ORS21.010as support for his claim that he is the prevailing party and is entitled to recover costs. They are inapposite to this determination.

Petitioner does not cite ORS183.495or183.497, which we conclude are the applicable statutes governing the award of costs on petitions for judicial review filed pursuant to ORS183.480. ORS183.495allows the reviewing court to award costs when it "reverses or remands" an agency order. Because this court has neither reversed nor remanded the agency order, costs are not recoverable under that statute. ORS183.497provides that "the court shall allow a petitioner recoverable attorney fees and expenses if the court finds in favor of the petitioner and determines that the * * * agency acted without a reasonable basis in fact or in law." We did not make any finding "in favor of the petitioner" or determine that AFSD acted without a reasonable basis in fact or in law.Page 204Therefore, petitioner cannot recover costs under ORS183.497.

Because recovery of costs in contested cases under ORS Chapter 183 is limited to those situations encompassed by ORS183.495and183.497, one whose petition for judicial review is dismissed is not entitled to recover costs, even though after he has filed the petition the agency reconsiders and reverses the order he sought to have reviewed.

No costs allowed.Page 205