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D. M. v. Oregon Health Authority

Court of Appeals of Oregon

March 6, 2019

D. M., Petitioner,
v.
OREGON HEALTH AUTHORITY and Oregon State Hospital, Respondents.

          Argued and submitted January 29, 2019

          Oregon Health Authority 85816/076388

          Matthew Serres argued the cause for petitioner. Also on the briefs was Disability Rights Oregon.

          Jona J. Maukonen, Assistant Attorney General, argued the cause for respondents. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary:

         Petitioner seeks review under ORS 183.482 of a final order in a contested case by the Oregon State Hospital. Petitioner was committed to the state hospital, which determined that petitioner was unable to give informed consent to receive appropriate medications and issued a notice that it had good cause to administer medication without petitioner's consent. Petitioner requested a contested case hearing, and an administrative law judge from the Office of Administrative Hearings (OAH) issued a final order in favor of the hospital. After petitioner sought judicial review of the order, the hospital withdrew the final order for reconsideration. On reconsideration, the hospital withdrew its notice of intent to administer medications to petitioner and its referral of the matter to the OAH, and issued an order commemorating those actions. Petitioner did not file an amended petition for judicial review. Petitioner raises multiple challenges to the withdrawn final order, but does not challenge the hospital's order on reconsideration. The hospital contends that the Court of Appeals lacks jurisdiction because petitioner did not file an amended petition for judicial review of the revised order on reconsideration, as required by ORS 183.482(6). Petitioner argues that the court has jurisdiction because the hospital's order on reconsideration is, essentially, legally ineffective, and, alternatively, that the court has jurisdiction under ORS 14.175, which permits review of certain moot cases. Held: [296 Or.App. 398] The Court of Appeals lacked jurisdiction, which required dismissal. Under ORS 183.482(6), when an agency withdraws an order and then files an order on reconsideration that does more than affirm or modify the order with minor changes, a petitioner's failure to timely file an amended petition for judicial review means that the proceedings must be dismissed for lack of jurisdiction. Additionally, once an agency withdraws an order, the case returns to the agency where it remains unless the agency issues an order on reconsideration. Thus, accepting petitioner's contention that the reconsideration order is, in effect, inoperative, the matter remained before the hospital and there was no final order for the court to review. ORS 14.175 did not assist petitioner because the court did not have jurisdiction under ORS 183.482.

         Petition for judicial review dismissed.

         [296 Or.App. 399] LAGESEN, P. J.

         Petitioner seeks review, pursuant to ORS 183.482, of a final order in a contested case by the Oregon State Hospital. The issue, as it turns out, is jurisdiction: Do we have jurisdiction under the Administrative Procedures Act to review an agency order that has been withdrawn? We conclude that we do not and, therefore, dismiss.

         Petitioner was committed to the state hospital under ORS 161.370, because she had been charged with crimes but was not fit to proceed. Once there, the hospital determined that petitioner was gravely disabled and was unable to give informed consent to the course of medications that the hospital determined was the most appropriate to treat petitioner's disorder. It then issued a notice that it had good cause to administer medication without petitioner's consent. Petitioner, with the assistance of hospital staff, requested a contested case hearing and the matter was referred to the Office of Administrative Hearings (OAH). Following the contested case hearing, the administrative law judge issued a final order on behalf of the hospital determining that the hospital permissibly could administer medications to petitioner without her informed consent.

         Petitioner sought judicial review of that final order under ORS 183.482. The hospital withdrew it for reconsideration, as allowed by ORS 183.482(6). On reconsideration, the hospital decided to withdraw its notice of intent to involuntarily administer medications to petitioner and withdraw its referral of the matter to the OAH, and issued orders commemorating those actions. Petitioner did not file an amended petition for judicial review after the hospital filed its order on reconsideration. In her opening brief to us, she raises a number of challenges to the withdrawn final order, but does not challenge the hospital's order on reconsideration. The hospital contends that we lack jurisdiction because petitioner did not file an amended petition for judicial review of the revised order on reconsideration, as required by ORS 183.482(6). Petitioner contends that we have jurisdiction to review the withdrawn order because, in petitioner's view, the hospital's order on reconsideration is legally ineffective. Alternatively, petitioner contends that we have jurisdiction [296 Or.App. 400] to review the withdrawn order under ORS 14.175, which permits review of certain moot cases.

         Regardless of whether the hospital's order on reconsideration is an effective reconsideration order, as the hospital contends, or an ineffective one, as petitioner contends, we lack jurisdiction in either circumstance.

         What if the order on reconsideration is a legally effective one? When an agency withdraws an order under ORS 183.482(6) and then files an order on reconsideration that does not merely "affirm[] *** or modif[y] the order with only minor changes," a petitioner must file a timely amended petition for judicial review of the order on reconsideration if the petitioner seeks to proceed with the case: "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." ORS 183.482(6). A petitioner's failure to timely file an amended petition for judicial review means that the proceeding must be dismissed for lack of jurisdiction. Haskell Corp. v. Filippi,152 Or.App. 117, 125-26, 953 P.2d 396, rev den,327 Or. 305 (1998); see Knapp v. Employment Division,67 Or.App. 231, 677 P.2d 738 (1984) (the petitioner's failure to timely file an amended petition for judicial review of order on reconsideration meant that Court of Appeals lacked jurisdiction). Here, petitioner ...


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