Reynolds v. Dept. of Human Services

Under ORS 183.484(4), an agency may withdraw a final order “in an other than contested case” for reconsideration at any time after the filing of a petition for judicial review, before the date set for hearing, without permission from the court.

Petitioner sought judicial review of a final order issued by the Department of Human Services (DHS) regarding neglect of children.  DHS withdrew its final order and issued the first order on reconsideration (FOR I).  A few days before the trial court considered Petitioner’s summary judgment motion on FOR I, DHS withdrew FOR I and issued FOR II.  The trial court heard Petitioner’s motion on FOR I and granted summary judgment and awarded attorney fees in Petitioner’s favor.  DHS appealed both the judgment and award of attorney fees.  On appeal, DHS argued that “its withdrawal of FOR I” left the court with nothing to review.  In response, Petitioner asserted that ORS 183.484(4) allows agencies to withdraw final orders for reconsideration, “once, with permission of the court,” and does not allow for multiple withdrawals.  Under ORS 183.484(4), an agency may withdraw a final order “in an other than contested case” for reconsideration at any time after the filing of a petition for judicial review, before the date set for hearing, without permission from the court.  The Court found that FOR I was not in effect on the date of the motion hearing and “the trial court lacked jurisdiction to review” FOR I.  Thus, the Court held that the trial court “erred when it granted Petitioner’s summary judgment motion” and judgment for attorney fees.  Reversed and remanded.