S055770, Opinion — Dawson/Fletcher v. Board of Parole

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Argued and submitted March 3, at Lewis and Clark College of Law, Portland,
Oregon, orders of Court of Appeals affirmed August 27, 2009

CRAIG THOMAS DAWSON,
Petitioner on Review,
v.
BOARD OF PAROLE
AND POST-PRISON SUPERVISION,
Respondent on Review.
(CA A123488; SC S055770 (Control))
DENNIS GERHARDT FLETCHER,
Petitioner on Review,
v.
BOARD OF PAROLE
AND POST-PRISON SUPERVISION,
Respondent on Review.
(CA A135814; SC S055789)
(Consolidated for Opinion)

217 P3d 1055

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# En Banc

On review of orders of the Court of Appeals .*

Bronson D. James, Chief Deputy Public Defender, Salem,
argued the cause and filed the briefs for petitioners on
review. With him on the briefs was Peter Gartlan, Chief
Defender, Office of Public Defense Services. With him on the
brief for petitioner on review Dawson was Brandon G.
Williams, Deputy Public Defender.

Greg Rios, Assistant Attorney General, Salem, argued the
cause and filed the briefs for respondents on review. With
him on the briefs were John R. Kroger, Attorney General,
and Erika L. Hadlock, Acting Solicitor General.

DURHAM, J.

The orders of the Court of Appeals are affirmed.

\* Order of dismissal dated December 27, 2007, and an order denying motion to
reinstate judicial review, dated April 8, 2008.

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# DURHAM, J.

Petitioners Dawson and Fletcher seek judicial
review under ORS 144.335 of orders in which the Board of
Parole and Post-Prison Supervision (the board) denied their
requests to reopen and reconsider earlier orders. The board
moved to dismiss both petitions for judicial review on the
ground that an order denying reconsideration of an earlier
order is not itself a "final order" and, as such, is not subject to
judicial review under ORS 144.335. See Esperum v. Board of
Parole, 296 Or 789, 796, 681 P2d 1128 (1984) (so stating);
Mastriano v. Board of Parole, 342 Or 684, 696, 159 P3d 1151
(2007) (reaffirming that holding of Esperum). The Court of
Appeals agreed and entered orders of dismissal. We allowed
review and consolidated the cases. On review, petitioners
argue that the board "constructively reopened" the earlier
final orders and, as such, its orders declining to reopen and
reconsider earlier orders are themselves final orders that are
subject to judicial review. We conclude that, although it is
possible for the board to constructively reopen or reconsider
an earlier final order, no such action occurred here. Accord-
ingly, we affirm the orders of the Court of Appeals.

Before turning to the facts of these cases, it is neces-
sary to discuss the statutes and rules that provide for
administrative and judicial review of board orders. Oregon
Administrative Rule (OAR) chapter 255, division 80, governs
the board's administrative review of its own orders. OAR
255-080-0005 provides that an inmate must request admin-
istrative review "within forty-five (45) days after the mailing
date on the Board's final action on the reviewed issue,"
and that the board will reject as untimely a request that does
not comply with that time limit.1 OAR 255-080-0012(1)

1 OAR 255-080-0005 provides, in part:

"(1) An inmate/offender may request an administrative review by sending
Exhibit O, Administrative Review Request Form, to the Board concisely
explaining how his or her case fits the criteria for review listed in rule 255-080-
0010.

"(2) An inmate/offender must request administrative review within forty-
five (45) days after the mailing date on the Board's final action on the reviewed
issue. The Board will reject a request for administrative review as untimely
unless:

"(a) It is physically received by the Board on or before the 45th day after
the mailing date on the Board's final action on the reviewed issue; or

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authorizes the board to grant a request for review if the
request is consistent with criteria set forth in OAR 255-080-
0010 and limitations set forth in OAR 255-080-0011.2 Aside
from that procedure, however, OAR 255-080-0012(2) also

"(b) It is delivered to the Board by mail in an envelope bearing a United
States Postal Service (USPS) cancellation stamp dated on or before the 45th
day after the mailing date on the Board's final action on the reviewed issue; or

"(c) In the case of an inmate, and in the absence of a legible USPS cancel-
lation stamp, the inmate signed and dated the request and deposited it in the
institutional mailing system in compliance with all applicable Department of
Corrections rules on or before the 45th day after the mailing date on the
Board's final action on the reviewed issue.

"(4) If the Board or its designee determines that the request is consistent
with the criteria as defined in rules 255-080-0010 and 255-080-0011, and meets
the deadline requirements, the Board will resolve the matter using the proce-
dures outlined in OAR 255-080-0012."

2 OAR 255-080-0010 provides:

"The criteria for granting a review are:

"(1) The Board action is not supported by evidence in the record; or

"(2) Pertinent information was available at the time of the hearing which,
through no fault of the offender, was not considered; or

"(3) Pertinent information was not available at the time of the hearing,
e.g., information concerning convictions from other jurisdictions; or

"(4) The action of the Board is inconsistent with its rules or policies and
the inconsistency is not explained; or

"(5) The action of the Board is in violation of constitutional or statutory
provisions or is a misinterpretation of those provisions.

"(6) The action of the Board is outside its statutory grant of discretion."
OAR 255-080-0011 provides:

"All administrative review requests will be screened by a Board member or
a Board designee who may deny further review of the following matters:

"(1) Findings of aggravation when the Board has set the prison term
within or below the matrix range;

"(2) Findings of aggravation when the Board has not overridden a judicial
minimum and the prison term has been set equal to the judicial minimum;

"(3) Matters which have previously been appealed and decided on the
merits by either the Board or the appellate court(s);

"(4) Administrative review requests considered untimely pursuant to rule
255-080-0005;

"(5) Subject matter of a hearing or review and/or Board order other than
the Board order being appealed;

"(6) Matters that will not change the parole release date or conditions or
length of supervision;

"(7) Board orders that are not final;

"(8) Errors previously corrected;

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provides the board with discretion to reconsider its own
orders at any time:

"The Board may open a case for reconsideration of a finding
without receiving a request, without regard to time limits,
and without opening all findings for review and appeal."

In other words, OAR 255-080-0012(2) authorizes the board to
reopen and reconsider a finding in its own order, after the
time limit for an inmate's or offender's request for adminis-
trative review of the order has expired.3

ORS 144.335 governs judicial review of the board's
orders and provides, in part:

"(1) A person over whom the State Board of Parole and
Post-Prison Supervision exercises its jurisdiction may seek
judicial review of a final order of the board as provided in
this section if:

"(9) Order which sustains a minimum term and the inmate/offender does
not contest the crime severity rating and history risk score;

"(10) Order which denies, grants or grants in part an inmate/offender's
request for a prison term reduction based upon outstanding reformation under
ORS 144.122;

"(11) Order which refers an inmate/offender for psychological evaluation;

"(12) Order which postpones an inmate/offender's release date because of:

"(a) A Board finding of dangerousness under ORS 144.125(3) and OAR
255-060-0012;

"(b) An inmate/offender's refusal to submit to a psychological evaluation;

"(13) Order which postpones an inmate/offender's release date because of
serious misconduct during confinement; or

"(14) Order which denies an inmate/offender's request under ORS
144.228(1) for an early parole consideration hearing.

"(15) Order which sets an initial release date under ORS 144.120, except
if inmate/offender contests the crime severity rating, the history risk score or
aggravating factors found by the Board under Board rules;

"(16) Order which sets a date for a parole consideration hearing under
ORS 144.228;

"(17) Order which sets a release date or declines to set a release date after
a parole consideration hearing under ORS 144.228."

3 Several statutes in the Administrative Procedures Act (APA), ORS ch 183,
including those pertaining to orders in contested cases, ORS 183.470, and judicial
review of agency orders, ORS 183.480, have no applicability to the board. ORS
183.315(1). As a result, those parts of the APA do not bear on the authority of the
board or the courts in this context.

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"(a) The person is adversely affected or aggrieved by a
final order of the board; and

"(b) The person has exhausted administrative review
as provided by board rule.

***** *

"(4) If a person described in subsection (1) of this sec-
tion seeks judicial review of a final order of the board, the
person shall file a petition for judicial review with the Court
of Appeals within 60 days after the date the board mails the
order disposing of the person's request for administrative
review. The person shall serve a copy of the petition for judi-
cial review on the board."

ORS 144.335 thus provides that orders of the board are sub-
ject to judicial review, if the order is a "final order," the peti-
tioner is "adversely affected or aggrieved" by it, and the peti-
tioner has "exhausted administrative review."

ORS 144.335 does not explain what a "final order" is
for purposes of judicial review of a board decision. In
Esperum, this court considered that question. Several
inmates had requested that the board reopen and reconsider
earlier orders setting their parole release dates. This court
noted that, under the board's existing rules, the board could
respond in one of three ways:

"(1) Deny the request for reconsideration;

"(2) Allow the request and grant some relief by chang-
ing the order; or

"(3) Allow the request, but deny relief."

Id. at 795-96 (emphasis in original). This court concluded
that the latter two responses would result in a "final order,"
subject to judicial review under ORS 144.335(1). A denial of a
request for reconsideration, however, would not result in a
final order. To hold otherwise "would effectively eliminate
the statutory 60-day petition requirement [under ORS
144.335(4)] because an inmate could challenge an initial
order, no matter how old, by seeking administrative review
and then challenge the denial." Id. at 796; see also Mastriano,
342 Or at 696 (reaffirming that holding of Esperum). There-
fore, under Esperum and Mastriano, a board order denying

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reopening and reconsideration of an earlier final order is not
subject to judicial review.4

With the foregoing in mind, we turn to the facts of
petitioner Dawson's case, which are not in dispute. In 1985, a
trial court convicted Dawson of murder and imposed a life
sentence. The board subsequently released Dawson on
parole, but later revoked that parole.5 Following a future dis-
position hearing, the board on December 10, 1996, denied
Dawson rerelease on parole, finding that he could not be ade-
quately controlled in the community. The board memorial-
ized that ruling in Board Action Form (BAF) #13:

"PURSUANT TO OAR 255-75-079; OAR 255-75-096 AND
CITING EXHIBIT H, AGGRAVATING FACTOR(S): REP-
ETITION OF TYPE OF CONDUCT ASSOCIATED WITH
COMMITMENT OFFENSE OR PAST CONDITIONS
(RETURN TO ASSAULTIVENESS, INVOLVEMENT IN
SAME TYPE OF CRIMINAL ACTIVITY); REPEATED
POSSESSION OF MULTIPLE WEAPONS. THE BOARD
DENIES RE-RELEASE, FINDING THE INMATE CAN-
NOT BE ADEQUATELY CONTROLLED IN THE COM-
MUNITY. THIS DENIAL OF RE-RELEASE RESULTS IN
A TRUE LIFE SENTENCE."

On January 28, 1997, Dawson sought administrative review
of BAF #13, arguing, in part, that the board had violated the
state and federal ex post facto clauses by failing to apply rules
enacted in 1985 to his review. The board rejected that argu-
ment and denied relief.

4 When this court decided Esperum in 1984, OAR 255-40-020 provided:

" "The Board may reopen any case for reconsideration upon formal written
request of a prisoner to the chairperson or motion of a Board member * * * '"

Id. at 795 (quoting the rule). Like the present OAR 255-080-0012(2), former OAR
255-40-020 did not place a time limitation on the board's reconsideration of an ear-
lier order.

There is a difference between the two rules. Former OAR 255-40-020 expressly
provided that a prisoner could make a formal written request for reconsideration.
OAR 255-080-0012(2) does not; it merely states that the board may
reopen and reconsider an order at any time. However, both petitioners and the
board appear to assume that petitioners properly may request reopening and
reconsideration of the orders at issue in the instant case. Without deciding the
issue, we make the same assumption.

៛ The record before this court does not reveal the dates of Dawson's parole, or
the reasons for its revocation.

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In 2003, Dawson filed an administrative request for
the board to reopen and reconsider BAF #13. Dawson argued
that, in BAF #13, the board had violated the state and federal
ex post facto clauses by applying administrative rules that
were not in effect in 1985, when he had committed the crime
that led to his incarceration. Dawson based his argument on
Himes v. Thompson, 336 F3d 848 (9th Cir 2003), in which the
Ninth Circuit held that the board had violated the federal ex
post facto clause by applying particular administrative rules
enacted in 1994 to a prisoner who had committed his crimes
in 1978. In Himes, the petitioner, an Oregon inmate, was sen-
tenced to a 70-year prison term for acts committed in 1978. In
1994, the board released him on parole and, less than four
months later, revoked the parole. Applying rules in effect in
1994, but not in effect in 1978, the board found aggravation,
denied rerelease, and scheduled the petitioner's next parole
review for 2024. The Ninth Circuit determined that the ex
post facto inquiry turned on whether the 1994 rules, as com-
pared to the 1978 rules, "created a substantial-rather than
attenuated or speculative-risk of increasing Himes' incar-
ceration * * *. " Id. at 856. After conducting that comparative
analysis, the Ninth Circuit concluded that, in comparison to
the rules in effect in 1978, the 1994 regulatory regime
"significantly increased the possibility of serving a lengthy
re-incarceration period." Id. at 859-60.

The board issued Administrative Review Response
(ARR) #7, which stated, in part:

"The board denies your request to reopen and reconsider its
decision in BAF #13 for the following reasons. In Himes, the
court addressed issues regarding the board's rules that
were in effect July 19, 1978 to January 31, 1979. You com-
mitted your crime on May 30, 1985. Consequently, the
Himes decision does not apply to your case. As a result, your
request for the board to reopen and reconsider its finding in
BAF #13 is denied."

The board read Himes to require the described comparative
analysis of rule regimes for significant risk of increased pun-
ishment but only if the underlying crime occurred in 1978,
like the crime in Himes, and thus, was subject to the identical
rules examined in Himes. The board may have read Himes
too narrowly-the Ninth Circuit said nothing to confine its

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holding in that manner-but we need not decide that ques-
tion to resolve Dawson's petition in this court.

In 2004, Dawson filed a petition for judicial review of
ARR #7. The board moved to dismiss the proceeding, assert-
ing that ARR #7 was not a final order under ORS 144.335.
The Court of Appeals denied the motion to dismiss and
granted Dawson leave to proceed with judicial review.6 This
court vacated the order of the Court of Appeals and
remanded for reconsideration in light of Mastriano. On
remand, the Court of Appeals determined that, under
Mastriano, ARR #7 was not a final order and therefore was
not subject to judicial review. The court then entered an
order dated December 27, 2007, granting the board's motion
to dismiss. Dawson seeks review of that order.

The facts of petitioner Fletcher's case also are not in
dispute. A trial court convicted Fletcher of first-degree
sodomy.7 In 1998, the board released Fletcher on post-prison
supervision. Prior to his release, however, the board issued
an order of supervision conditions, designating Fletcher as a
predatory sex offender (PSO). In 2006, Fletcher requested
that the board reopen and reconsider that order, claiming,
among other things, that he had not received a hearing on his
PSO designation, and that the board had failed to inform him
that he could request administrative review. In response, the
board issued ARR #2, which stated, in part:

"The board has reviewed and fully evaluated your request.
The arguments you have provided, however, do not warrant
reopening and reconsidering your case. Interests of admin-
istrative efficiency and finality of board orders militate
against reopening and reconsidering a final board order
based on issues that could have been raised through estab-
lished procedures for administrative review. You could
have raised your arguments in a timely request for admin-
istrative review of the June 3, 1998, Order. * * * Therefore,

€ The board also had argued that the Court of Appeals had no jurisdiction over
ARR #7 because that order, by denying a request to reopen an earlier order, had not
"adversely affected or aggrieved" Dawson. The Court of Appeals rejected that argu-
ment, citing Richards v. Board of Parole, 339 Or 176, 118 P3d 261 (2005). The
board does not repeat that claim at this stage of the case, and we do not address it.

7 Again, the record before this court is limited, and does not reveal the date or
the circumstances of Fletcher's conviction.

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based on the information that you have provided the board
in your request, the board denies your request to reopen
and reconsider its previous order."8

Fletcher filed a petition for judicial review of ARR
#2. The board moved to dismiss the proceeding, arguing that,
under Mastriano, ARR #2 was not a final order. Fletcher
argued, in response, that ARR #2 indicated that the board
had "evaluat[ed] the substance of petitioner's legal challenge
for reopening," thus constructively reopening the case and
denying relief. The Court of Appeals rejected that argument,
stating that ARR #2 "merely explains why [the board] is
declining to reopen and reconsider the matter formerly
decided," and that the board's explanation did not amount to
a reconsideration of the underlying PSO designation. The
court granted the board's motion to dismiss in an order dated
December 27, 2007, and Fletcher seeks review of that order of
dismissal.

On review, the parties do not dispute whether peti-
tioners were adversely affected or aggrieved by the orders
denying reopening and reconsideration, or whether they
exhausted administrative remedies prior to seeking judicial
review. Instead, both Dawson and Fletcher (hereafter
referred to collectively as "petitioners") argue that the orders
at issue in the instant case are final orders and subject to
judicial review. Petitioners assert that, when the board
explained its reasons for denying their requests to reopen
earlier orders, it made a "ruling on the merits." Accordingly,
petitioners argue, the board did not merely deny their
requests for reopening and reconsideration. Instead, the
board "constructively reopened" the earlier orders-in other
words, the board allowed their requests, reconsidered the
earlier orders, and denied relief, resulting in orders designated
as "final" under Esperum and Mastriano. See Mastriano,
342 Or at 690 (noting that, when the board "reexamines a
prior order, even if it reaffirms the order in full," that action
results in an order that is "final for purposes of judicial
review").

8 The board also noted, and Fletcher acknowledged, that he previously had
submitted another request to reopen and reconsider his PSO designation. The
board denied that request in 2005, and the Court of Appeals dismissed judicial
review of that proceeding in 2006.

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Petitioners advance two primary sources of legal
support for their argument. First, although petitioners
acknowledge that no Oregon cases recognize a doctrine of
"constructive reopening," they point out several federal cases
that do. As a general matter, when the Secretary of the for-
mer Department of Health, Education, and Welfare denied a
petition to reopen an earlier claim for Social Security bene-
fits, federal courts lacked jurisdiction to review that denial.
Califano v. Sanders, 430 US 99, 107-09, 97 S Ct 980, 51 L Ed
2d 192 (1977). However, if the Secretary, in the act of denying
reopening of the earlier claim, proceeded to reconsider the
claim "on the merits," the court treated the claim as "having
been reopened as a matter of administrative discretion,"
making it subject to judicial review. Jelinek v. Heckler, 764
F2d 507, 508 (8th Cir 1985).

Second, petitioners assert that, as a general legal
principle, "it is the body of a document, not its caption, that
controls" the legal effect of that document. To support that
proposition, petitioners cite a series of cases that, in the
main, discuss the legal import of motions filed with the court.
E.g., Burden v. Copco Refrigeration, Inc., 339 Or 388, 393,
121 P3d 1133 (2005) (holding that when a party incorrectly
captioned a document as a motion to dismiss under ORCP
21 A, that fact did not prevent a trial court from treating it as
an application for a preliminary hearing under ORCP 21 C);
Welker v. TSPC, 332 Or 306, 312, 27 P3d 1038 (2001) (noting
that whether a motion will be considered as a motion for a
new trial "is controlled by [the motion's] substance, not its
caption"). Petitioners also cite cases in which, they contend,
this court stressed the importance of examining the sub-
stance, rather than the form, of legal relations and actions.
See NW Medical Lab. v. Blue Cross and Blue Shield, 310 Or
72, 83, 794 P2d 428 (1990) (holding that this court deter-
mines whether a joint venture has violated Oregon antitrust
law by looking "at substance, not form"); Baker v. City of
Milwaukie, 271 Or 500, 511-12, 533 P2d 772 (1975) (noting
that, in order to determine whether a comprehensive city
plan is "legislative and permanent in nature or administra-
tive and temporary," this court looks "to the substance of the
action rather than the mere title").

On the basis of those legal sources, petitioners pro-
pose that when the Board of Parole "reache[s] the merits" of a

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claim that a petitioner advances for reopening an earlier
order, the board constructively reopens that order. They con-
tend that any resulting denial of relief is itself a final order,
subject to judicial review. Petitioners assert that the board
reaches the merits of a claim when it "adds to or alters the
factual findings of the original decision, or adopts a legal posi-
tion, argument, or conclusion not present in the original deci-
sion or contrary to the original decision."

The board responds that an order denying a request
to reopen and reconsider an earlier order is not a final order
"regardless of any explanation for the denial because the only
legally operative portion of the order is the denial itself."
Under petitioners' rule, the board insists, "[i]t is hard to
imagine what the board could say in explaining its reasons
for denying reopening and reconsideration" that would not
result in constructive reopening. The board also asserts that
petitioners' proposed rule of law is inconsistent with the
60-day deadline for seeking appellate review under ORS
144.335(4). Citing Esperum and Mastriano, the board insists
that a doctrine of constructive reopening would "nullify the
60-day time limit that the legislature placed on seeking judi-
cial review." Mastriano, 342 Or at 696. Finally, the board
asserts that if the board can implicitly reopen a case by
adopting a "legal conclusion," then a denial of reopening
would become a "final order" under ORS 144.335(1), and
"[t]herefore, a petitioner would not be required to make an
administrative review request within 45 days of the denial of
reconsideration."

As this court held in Esperum and Mastriano, an
order denying reopening and reconsideration of an earlier
order is not a final order and is not subject to judicial review.
However, Esperum also held that, "[W]hen reconsideration of
an earlier order is requested and granted, and the adminis-
trative action denies parole release date relief, such a denial
of relief is subject to judicial review in the Court of Appeals
***. " Id. at 798. Neither party challenges those propositions.
What the parties disagree on is how an appellate court
should determine whether an order of the board is subject to
review under those cases. Petitioners insist that this court
should make that determination by asking whether the
board has "reached the merits" of a request for reopening.
The board responds that the determination begins and ends

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with the tagline of the order in question.9 At oral argument,
however, the board acknowledged that this court may exam-
ine the "four corners" of the order for an "intent to undermine
the tagline."

We decline to adopt the position that the inquiry into
whether the board has reopened a prior order begins and
ends with the tagline of the order or with an investigation of
the board's intent. Instead, we must determine the legal
effect or legal substance of an order by examining it in its
entirety, not by focusing solely on one or more of its parts,
such as the order's caption or a statement of disposition. That
brings us to the question of what characteristics regarding
the order will demonstrate that, in legal effect, the board has
reopened or reconsidered a prior order and, therefore, the
order is a final order and is subject to judicial review.

"Determining whether a subsequent action constitutes
a reopening and a new decision requires a court to engage
in an often-difficult process of characterization."

Richard J. Pierce, Jr., 2 Administrative Law Treatise 828 (4th
ed 2002).

A "reconsideration" of an earlier order contemplates
fresh deliberation over a factual or legal matter that the
board already has considered and decided in the past. If the
board alters a factual finding or legal conclusion in an earlier
order, and the change is material to a party's legal rights
under that order, then we would conclude that the board had
reconsidered the order even if the order purports to deny
reconsideration. But when the board determines, for exam-
ple, that the petition for reconsideration relies on a new fac-
tual development or new legal decision that is irrelevant to
the earlier order, and accompanies that determination with a
denial of reopening or reconsideration, there is no basis for a
reviewing court to conclude that the board has reopened or
reconsidered the prior order, see Mastriano, 342 Or at 696
(explaining that no judicially reviewable final order results
when the board's "denial of reconsideration [leaves] the prior
final order undisturbed").

9 The term "tagline" refers to the final sentence in an order or opinion that
states in summary form the decision or disposition.

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Several federal cases illustrate that point. Under the
federal court doctrine of constructive reopening, the federal
courts hold, for example, that an administrative law judge
(ALJ) has reopened a claim for benefits if that judge has
addressed the merits of the earlier claim. Boock v. Shalala,
48 F3d 348, 351 (8th Cir 1995). However, an ALJ does not
reopen the earlier claim by conducting a threshold inquiry
into the evidence and arguments that accompany a request
for reopening. Byam v. Barnhart, 336 F3d 172, 181 (2d Cir
2003). Otherwise, "these threshold inquiries would lead to
frequent unwarranted judicial review," defeating legislative
decisions in favor of the finality of reviewable orders. Id.

McGowen v. Harris, 666 F2d 60 (4th Cir 1981), pro-
vides an extensive discussion of the distinction between con-
structive reopening and a mere threshold inquiry into a
request for reopening. The claimant had applied for surviv-
ing child's insurance benefits as the surviving son of the dece-
dent. The Social Security Administration denied benefits to
the claimant, holding that he had failed to establish that he
was the "child" of the decedent under the Social Security Act.
The claimant then sought reconsideration of the denial, pre-
senting further evidence that the decedent orally had
acknowledged the claimant as his son. An ALJ stated that
the claimant had presented sufficient evidence to establish
that the decedent was his father, but failed to present suffi-
cient "new and material" evidence of his dependency on the
decedent to justify reopening. Accordingly, the ALJ denied
reconsideration. The claimant then sought review in federal
court, claiming that the ALJ had constructively reopened his
earlier claim.

The Fourth Circuit responded that no reconsidera-
tion on the merits had occurred, and specifically addressed
the argument that the ALJ had reopened the claim by
addressing the claimant's new evidence and legal theories:

"Of necessity when a social security claimant presents
any claim that is arguably the same one earlier decided on
the merits, the Secretary must in fairness look far enough
into the proffered factual and legal support to determine
whether it is the same claim, and if so, whether it should
nevertheless be reopened as a discretionary matter. * * *

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"In fairness to the claimant, the results of this threshold
inquiry may be reported as a prelude to reporting the dis-
positive administrative action taken. Thus, an ALJ may
state in a formal decision, as here, that though the claimant
had presented sufficient new evidence to establish biologi-
cal parentage of the wage earner, his new evidence of
dependency was not sufficiently 'new and material' to war-
rant reopening and that it went merely to establish the
same claim for res judicata purposes. When, as here, this is
followed by a specific conclusion that the claim should be
denied on res judicata grounds, the threshold inquiry into
the nature of the evidence should not be read as a reopening
of this claim on the merits."

Id. at 67-68 (citation omitted).

McGowen, a case frequently cited by other courts
addressing questions of constructive reopening, and the logic
of which is persuasive to this court, does not support petition-
ers' somewhat circular argument that constructive reopening
occurs whenever the board addresses the merits of whether
to reconsider an earlier order. Any petition for reconsidera-
tion necessarily will place in issue the merits of whether to
grant reconsideration. The board must evaluate a peti-
tioner's evidence and arguments in favor of reopening in
order to determine whether any proffered evidence and argu-
ments do, in fact, warrant reconsideration of the earlier
order. The board, if it chooses, may report those findings and
conclusions to the inmate. But when the board states those
findings without a reexamination of the accuracy of any part
of the prior order, there is no basis for a reviewing court to
conclude that anything other than a denial of reconsideration
has occurred. Indeed, in McGowen, the ALJ made an entirely
new, albeit irrelevant, finding of fact-that the claimant was,
in fact, the biological child of the decedent-and the Fourth
Circuit still held that such a finding did not reopen the case.10

10 McGowen did suggest, however, that the Appeals Council's review of the
ALJ's decision not to reopen the claim might have reopened the claim on the mer-
its, based on "its stated conclusion that the Michigan intestacy law would control
the question of claimant's legitimacy, hence dependency, and that it would not sup-
port his claim." The Fourth Circuit was "not prepared to say that jurisdiction to
consider [that claim] would not have existed." Id. at 68.

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<!-- PageHeader="Cite as 346 Or 643 (2009)" -->

We reiterate, as we did in Esperum and Mastriano,
the significance of the 60-day time limit that the legislature
has imposed on petitioners seeking judicial review of final
orders under ORS 144.335(4). We observed in those cases
that allowing judicial review of orders denying reopening and
reconsideration would nullify that requirement by allowing a
petitioner to seek reconsideration of an initial order, no mat-
ter how old, and then challenge the denial of reconsideration
in court. Esperum, 296 Or at 796; Mastriano, 342 Or at 696.
Likewise, allowing judicial review of such orders whenever
the board finds any new fact or states any conclusion of law
either would result in judicial review of a vast number of such
orders-again, eviscerating the 60-day time limit on seeking
judicial review-or induce the board to stop providing writ-
ten reasons for its decision to deny reopening and reconsid-
eration. The first outcome is contrary to legislative intent; the
second results-undesirably, in our view-in the board
cloaking its rationale in secrecy.

Applying the foregoing principles to the instant case,
we hold that both petitioners have failed to demonstrate that
the board constructively reopened its earlier orders. We con-
sider Dawson's case first. Dawson asserts that the board con-
structively reopened its earlier order denying rerelease when
it stated:

"In Himes, the court addressed issues regarding the board's
rules that were in effect July 19, 1978 to January 31, 1979.
You committed your crime on May 30, 1985. Consequently,
the Himes decision does not apply to your case."

Dawson argues that the board reached a "wholly novel" legal
ruling about the applicability of Himes, and thereby reached
the substantive merits of his claim for reopening. We disa-
gree. The board made a threshold inquiry into whether the
holding in Himes, as the board construed it, was sufficiently
material to Dawson's case to justify reopening the earlier
order, and decided that the holding in Himes was not mate-
rial or relevant. That view informed the board's choice not to
reopen. It did not amount to a constructive reopening.
Whether the board "reaches the merits" of the arguments in
favor of reopening is beside the point.

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<!-- PageHeader="Dawson/Fletcher v. Board of Parole" -->

Fletcher argues that the board constructively
reopened the order designating him as a PSO by stating:

"The board has reviewed and fully evaluated your request.
The arguments you have provided, however, do not warrant
reopening and reconsidering your case."

Fletcher is mistaken. The board, in stating that his argu-
ments did not "warrant reopening," did not reconsider the
original PSO designation. Instead, the board weighed the
arguments that Fletcher presented in favor of reopening, and
found them wanting. Such a threshold determination is a
necessary part of the board's consideration of a request to
reopen and reconsider an earlier order, and does not itself
constitute a constructive reopening or reconsideration of the
prior order.

Petitioners submit one final argument: that the
board's administrative rules provide guidelines for reopening
and reconsideration of an earlier order and, therefore, this
court and the Court of Appeals have jurisdiction to review an
order denying reopening and reconsideration for consistency
with those criteria and abuse of discretion. The board
responds that, if an order denying reopening and reconsider-
ation is not a final order under ORS 144.335, then this court
may not review the order for abuse of discretion, because it
has no jurisdiction over the order in the first place. We agree
with the board, and reject petitioner's argument without fur-
ther discussion.

In these cases, the board did not reopen the earlier
orders, constructively or otherwise. The Court of Appeals cor-
rectly held that the board's orders denying reopening and
reconsideration were not final orders for purposes of judicial
review, and correctly dismissed petitioners' appeals on that
basis.11

The orders of the Court of Appeals are affirmed.

11 Our holding determines only whether petitioners are entitled to the statu-
tory remedy of judicial review under ORS 144.335. Petitioners may have other
potential remedies at their disposal, such as a petition for writ of habeus corpus or
mandamus, but we do not address in this case questions concerning the availability
to petitioners of those other potential remedies.