dissenting.
Implicit in today’s opinion is the majority’s desire to conserve judicial resources by avoiding the need to address the merits of what it believes to be meritless claims. To do that, it misinterprets the phrase “adversely affected or aggrieved” in ORS 144.335 to raise a jurisdictional bar to petitioner’s claim. The interpretation that it gives that phrase is not one that it would give the phrase in any of the other Oregon statutes in which the phrase appears. Ultimately, if the statutes and rules as written create the potential for the waste of judicial resources, that problem must be resolved by the legislature or by the agency.
ORS 144.335 provides:
“(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:
“(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 the board rule.”
The statute sets forth three jurisdictional requirements for judicial review. First, the petitioner must be “adversely affected or aggrieved.” Second, the petitioner’s grievance must be caused by a “final order of the board.” Third, the petitioner must exhaust the administrative remedies provided by board rule.
By order dated August 22, 2001, the Board of Parole and Post-Prison Supervision (the board) set petitioner’s parole release date for October 29, 2004. Petitioner exhausted his administrative remedies with regard to that order and sought judicial review. We affirmed the order on review without writing an opinion in the case. Wilcox v. *641Board of Parole, 192 Or App 673, 89 P3d 688 rev den, 337 Or 282 (2004).
While review of the August 22, 2001, order was pending before us, the Ninth Circuit decided Himes v. Thompson, 336 F3d 848 (9th Cir 2003), which took the board to task for violating a prisoner’s rights under the federal Ex Post Facto Clause. Believing that he had suffered the same ex post facto violation as the plaintiff in Himes, petitioner asked the board to reopen his case and reconsider his release date. He sought to avail himself of OAB, 255-080-0012(2), which allows the board to open a case for reconsideration “without regard to time limits.” Petitioner argued that the Himes decision constituted pertinent information not available to him or the board at the time of the hearing. On March 2, 2004, the board issued an order that denied petitioner’s request to reopen his case because, among other things, it did not interpret Himes to apply to petitioner. Petitioner seeks judicial review of the order denying his request to reopen his case.
The majority grants the board’s motion to dismiss the petition for review for lack of subject matter jurisdiction because it fails to see how petitioner was adversely affected or aggrieved by the board’s March 2004 order.1 The majority *642may not sense it, but its effort to conserve judicial resources sets mischief afoot. The phrase “adversely affected or aggrieved” is found in at least 12 other Oregon statutes.2 To the extent that the opinion holds that an order must change the status quo in order to adversely affect or aggrieve a party, it could prove to be a lethal weapon against those seeking judicial review of agency decisions in a number of administrative contexts. Agency orders across the spectrum often do no more than “reiterate” the status quo. There being no logical reason to limit the majority’s interpretation of “adversely affected or aggrieved” to the review of board orders, I fear that the majority is using a blunt instrument to solve a problem that requires a scalpel.
Petitioner was, in fact, adversely affected and aggrieved by the March 2004 order. He asked the board to reopen his case in light of an intervening Ninth Circuit opinion, which he believed had established that his rights under *643the federal Ex Post Facto Clause had been violated. The board denied his request in the March 2004 order. As a result of that order, petitioner remained in prison, possibly for a longer period than he should have. If petitioner’s interpretation of Himes is correct, the board’s order effectively deprived him of his rights under the Ex Post Facto Clause. By any measure, that is an adverse effect.
It may be that petitioner’s argument must fail on claim preclusion principles. It may also be that the Ninth Circuit opinion will not bear the weight that petitioner places on it. And it may be that the Ninth Circuit opinion is not the type of “watershed” rule of criminal procedure that courts must apply retroactively under the United States Constitution. The problem is that, under the majority opinion, we cannot find out, nor can we ever find out, whether this or any future petitioner is someone for whom a newly announced watershed rule does provide relief.
The board rules contemplate board action “without regard to time limits.” OAR 255-080-0012(2). Here, the board took such an action and purported to deny petitioner’s request to reopen and reconsider his case. However, for the board to state, as it does, that it denied the reconsideration is disingenuous. The order explicitly reconsiders petitioner’s release date in light of Himes. In one breath it purports to refuse to reconsider the date, and in another it reaches the legal conclusion that the Himes decision is of no import to that date. The order tells petitioner that “the Himes decision applies only to those offenders who committed their crimes on or between July 19,1978, and January 31,1979. You committed your crimes on August 28, 1984.” Thus, the board order explicitly ruled against petitioner on the Ex Post Facto Clause issue. That ruling adversely affected and aggrieved petitioner.
But the board insists that the March 2004 order “merely reiterates or maintains the status quo.” To the extent that the status quo was petitioner’s release date of October 29, 2004, that statement is accurate. But to the extent that petitioner’s release date may have been unlawful, maintaining the status quo adversely affects and aggrieves him. The majority, in its quest for judicial economy, ignores that fact. *644To the extent that dictionary definitions are helpful, I take no issue with the manner in which the majority defines the terms “adversely affected or aggrieved.” However, petitioner is adversely affected and aggrieved under those very definitions. The board’s order did “act upon” and “produce * * * [an] alteration in” petitioner. 197 Or App at 629 (internal quotation marks omitted). It rejected his claim that the board’s earlier order was unconstitutional under federal law and altered his status from a prisoner with a colorable argument that his continued incarceration was unlawful to that of a prisoner without such an argument. Petitioner is one “whose personal, pecuniary, or property rights have been adversely affected by another person’s actions or by a court’s decree or judgment,” id. (internal quotation marks omitted), because his right to avoid unlawful imprisonment may have been unlawfully restricted by the board’s action. Few adverse effects that an agency could work on a person are more aggrieving than an unconstitutional deprivation of liberty.
Furthermore, the cases relied on by the majority are unavailing. In Frey v. Board of Parole, 151 Or App 267, 269-70, 948 P2d 738 (1997), rev den, 326 Or 350 (1998), we held that a petitioner who challenges an order that merely continued the post-prison supervision (PPS) period previously imposed on the petitioner was not aggrieved or adversely affected by that aspect of the order. There, the initial order, which extended the petitioner’s PPS period to the end of his statutory sentence, was issued in November 1994. The petitioner did not challenge that order. However, in December 1994, after the petitioner had violated the terms of his PPS, the board issued a new order imposing a 90-day prison sanction. That order restated that, by operation of law, the petitioner would remain on post-prison supervision until the end of his statutory sentence. The petitioner challenged that aspect of the order, but, because the board had not taken any new action with regard to the PPS period, we held that the petitioner was not adversely affected or aggrieved by the later order with regard to the PPS period. Id. at 270.3
*645Whereas the challenged order in Frey addressed no new argument on the appropriate length of the PPS period, the challenged order here specifically rejects petitioner’s argument based on new Ninth Circuit precedent. That new action makes all the difference, for it is precisely what adversely affects and aggrieves petitioner.
People for Ethical Treatment v. Inst. Animal Care, 312 Or 95, 817 P2d 1299 (1991), also does not support the majority’s position. Although the crux of that case was whether the petitioner was adversely affected or aggrieved, the case turned on the nature of the petitioner’s interest, not whether that interest was affected, adversely or otherwise, by the agency action in question. The petitioner in that case was a public interest group — People for the Ethical Treatment of Animals (PETA) — that challenged an order of the University of Oregon’s Institutional Animal Care and Use Committee that approved a bam owl research project. Id. at 97. The court held that a person is adversely affected or aggrieved for purposes of ORS 183.480(1) — the Administrative Procedures Act — if the person shows one of the following:
“(1) the person has suffered an injury to a substantial interest resulting directly from the challenged governmental action * * *; (2) the person seeks to further an interest that the legislature expressly wished to have considered * * *; or (3) the person has such a personal stake in the outcome of the controversy as to assure concrete adverseness to the proceeding * *
Id. at 101-02 (citations omitted). The court concluded that PETA could not show any of the factors because it was simply a member of the public seeking to enforce the agency’s rules. Id. at 105.
People for Ethical Treatment, particularly the first factor quoted above, supports the majority’s legal rule, with which I agree, that the petitioner must be adversely affected or aggrieved by the challenged final order. But that much is obvious from the face of the statute and, thus, is unremarkable. The case cannot and does not lend any support to the majority’s conclusion that petitioner is not affected by the challenged order.
*646Finally, the majority cites Teel Irrigation Dist. v. Water Resources Dept., 323 Or 663, 919 P2d 1172 (1996), for the proposition that an agency order that “merely reiterated” an earlier decision of the agency did not adversely affect or aggrieve the party subject to that order. Simply put, that is a misunderstanding of the rule from Teel Irrigation Dist. There, the court dismissed the petition for review not because the petitioner was not adversely affected or aggrieved but, rather, because a letter that “merely reiterated” an earlier decision was not a reviewable final order. Id. at 678. In fact, the case contains no discussion at all of what it means to be “adversely affected or aggrieved.” Thus, it does not support the majority’s conclusion that an order that does not change the status quo cannot adversely affect or aggrieve a person.
Having demonstrated that petitioner was adversely affected and aggrieved by the March 2004 order, I turn to the proper disposition of this case. In order to invoke our review jurisdiction, petitioner must show that the order on review was final and that he has exhausted his administrative remedies. Here, petitioner did not exhaust his administrative remedies with regard to the March 2004 order. That is, he did not follow the procedures in OAR 255-080-0005 for administrative review of the board’s order that denied his request to reopen his case. Ordinarily, that failure would deprive us of subject matter jurisdiction and dismissal would be appropriate.4 However, the notice that the board gave petitioner about his rights to seek review of the March 2004 order is fundamentally flawed. In all capital letters, at the bottom of the page, that order says: “YOU MAY SEEK JUDICIAL REVIEW OF THIS ORDER BY FILING A PETITION WITH THE COURT OF APPEALS WITHIN 60 DAYS OF THE *647MAILING OF THIS ORDER, PER ORS 144.335.” Because that notice failed to tell petitioner that he first had to exhaust his administrative remedies before seeking judicial review, the rule of Jenkins v. Board of Parole, 313 Or 234, 243, 833 P2d 1268 (1992), requires us to remand this case to the board to give petitioner a notice that describes the appeal process accurately and affords him an opportunity to seek administrative review. The majority errs by granting the board’s motion to dismiss. Therefore, I respectfully dissent.
Edmonds, Landau, and Schuman, JJ., join in this dissent.The board also argued in its motion to dismiss that petitioner was not seeking review of a “final order” for purposes of ORS 144.335. Although there is case law that seems to support that proposition, the cases were decided under an earlier version of the statute. A key difference between that earlier and the current version of ORS 144.335 raises serious questions about the continuing vitality of those cases. Specifically, the earlier version of the statute did not require the exhaustion of administrative remedies. ORS 144.331 (1987).
The earlier statutory scheme, without mandatory exhaustion, presented petitioners a choice between administrative review and judicial review. Judicial review had to be sought within 60 days of the order, but there was no deadline for administrative review. Thus, prisoners who missed the window for judicial review could seek administrative review and then seek judicial review of the order denying administrative review. Essentially, such an action would render the 60-day time limit to seek judicial review a nullity.
At that time, much like today, we interpreted one of the jurisdictional requirements to solve the predicament. We held that board actions denying requests for administrative review were not “final orders” for purposes of the statute. See, e.g., Cruz v. Board of Parole, 53 Or App 263, 631 P2d 829, rev den, 291 Or 893 (1981).
Recognizing that the change in the statutory framework closes the “final order” door to it, the majority seeks to solve the problem another way. Faced with what it perceives as a statutory and regulatory scheme that allows inmates to abuse the system by seeking judicial review of the denial of successive *642reconsideration requests, the majority seizes on the statutory phrase “adversely affected and aggrieved” and tortures it to achieve its desired result. The “final order” solution was understandable and supported by the statute. The'majority’s solution is neither.
See ORS 161.385(8)(a) (allowing persons “adversely affected or aggrieved” by final orders of the Psychiatric Security Review Board to seek judicial review); ORS 183.480 (allowing persons “adversely affected or aggrieved” by final orders of state agencies to seek judicial review); ORS 196.985(4) (allowing persons “adversely affected or aggrieved” by violations of state wetlands regulations to intervene in contested cases that impose civil penalties); ORS 197.830(4)(b) (allowing persons “adversely affected or aggrieved” by certain land use decisions by local governments to appeal to the Land Use Board of Appeals); ORS 215.416(ll)(a)(A) (allowing persons “adversely affected or aggrieved” by county permitting or zoning decisions to appeal to the planning commission or governing body of a county); ORS 227.175(10)(a)(A) (allowing persons “adversely affected or aggrieved” by city permitting or zoning decisions to appeal to the planning commission or governing body of the city); ORS 279B.415(3) (allowing persons “adversely affected or aggrieved” by a public contracting agency’s decision to seek judicial review); ORS 390.835(4) (allowing persons “adversely affected or aggrieved” by the grant or denial of a permit to fill or alter the banks of a scenic waterway to appeal to the Director of the Department of State Lands); ORS 468.067(1) (allowing organizations whose members are “adversely affected or aggrieved” by certain actions of the Department of Environmental Quality or the Environmental Quality Commission to seek judicial review of those actions in certain circumstances); ORS 468.110 (allowing persons “adversely affected or aggrieved” by final orders of the Environmental Quality Commission to seek judicial review); ORS 469.503 (allowing persons “adversely affected or aggrieved” by the selection of offsets by energy facility site certificate holders to petition the Energy Facility Siting Council for review); ORS 527.700(3) (allowing persons “adversely affected or aggrieved” by certain forestry operations to seek a hearing before the Board of Forestry).
To add insult to injury, we so held twice. The petitioner had raised the same challenge to the same order in two distinct judicial review petitions. The other opinion is reported at Frey v. Board of Parole, 152 Or App 462, 950 P2d 418, rev den, 327 Or 173 (1998).
It may also mean that there is no final order to be reviewed. OAR 255-080-0001(1) provides:
“A Board order * * * is not final for purposes of the time period within which to appeal to the Court of Appeals until the inmate/offender exhausts his or her administrative review remedies.”
That rule at least raises the possibility that exhaustion is a requirement of finality. See also Rickman v. Board of Parole, 153 Or App 709, 712, 959 P2d 617 (1998), rev den, 329 Or 447 (1999) ("An order from the Oregon Board of Parole is not final and appealable until a petitioner seeks and the Board denies administrative review.”). But in light of the notice defect in the March 2004 order, that question can remain unanswered.