dissenting.
The law of Oregon regarding mootness that the majority cites is settled and not in dispute. This court will dismiss pending litigation as moot if a decision by the court “no longer will have a practical effect on or concerning the rights of the parties * * Brumnett v. PSRB, 315 Or 402, 406, 848 P2d 1194 (1993). The party that seeks dismissal — here, the State of Oregon and several local government entities (public employers) — must carry the burden to establish that the case is moot. Id. at 407.1 Because, in my view, the record in this case does not establish that a decision by this court on intervenors’ petition for judicial review would have no practical *129effect on the parties, this dispute is not moot. I respectfully dissent from the majority’s contrary conclusion.
As the majority correctly reports, two sets of administrative orders issued by the Public Employee Retirement Board (PERB) lie at the heart of this case. The first set consists of PERB orders, issued in 1998 and 2000, that established the rates of contribution that PERB required public employers to pay into the Public Employee Retirement System (PERS) for specified periods of time. The second was a single order that PERB issued in March 2000 that credited the system’s 1999 earnings to member accounts. All the orders at issue are orders in other than a contested case that are subject to judicial review under ORS 183.484. Each order is a final order, within the meaning of ORS 183.310, which provides, in part:
“As used in this chapter:
❖
“(6)(a) ‘Order’ means any agency action expressed orally or in writing directed to a named person or named persons, other than employees, officers or members of an agency. ‘Order’ includes any agency determination or decision issued in connection with a contested case proceeding. ‘Order’ includes:
«íj; ifc ‡ ‡
“(b) ‘Final order’ means final agency action expressed in writing. ‘Final order’ does not include any tentative or preliminary agency declaration or statement that:
“(A) Precedes final agency action; or
“(B) Does not preclude further agency consideration of the subject matter of the statement or declaration.”
Public employers petitioned for judicial review of the orders, arguing that PERB had misconstrued a number of statutes in issuing them. PERB disagreed and defended its orders. A number of public employees intervened and argued that public employers’ assertions about PERB’s construction of the pertinent statutes were erroneous.2
*130The trial court determined that each of the challenged orders was erroneous in that they reflected a misinterpretation of law or an abuse of discretion by PERB.3 Accordingly, the trial court vacated each order and remanded them to PERB with instructions to issue new orders “consistent with this judgment.”
PERB and intervenors appealed the trial court judgment to the Court of Appeals. 4 While the appeals were pending, the legislature in 2003 revised several of the statutes that regulated PERS. This court’s opinion in Strunk v. PERB, 338 Or 145, 108 P3d 1058 (2005), summarizes the operation of PERS both before and after those statutory amendments. The new legislation also transferred to this court jurisdiction over the appeal of the judgment in this case.
In February 2004, public employers (except EWEB) and PERS entered into an agreement that purported to settle the obligations of PERB under the terms of the trial court’s judgment. (I use the term “purported” advisedly because, as I discuss below, intervenors challenge the authority of PERB to withdraw its final orders pursuant to the settlement agreement.) For example, the agreement required PERS to “implement the judgment” in this case by adopting new administrative rules and directives governing the calculation *131of member benefits, the allocation of earnings, and the calculation of employer contribution rates, all in accordance with the judgment of the trial court. The agreement also required PERB to issue new orders that allocated earnings to member accounts and established employer contribution rates for the pertinent public employers for the years 1998, 2000, and 2003, again in accordance with the trial court’s judgment.
Intervenors are not a party to the settlement agreement. They assert that the trial court erroneously construed a number of statutes in the course of requiring PERB to vacate its orders. Intervenors also assert that PERB lacks authority to vacate its final orders pursuant to the settlement agreement described above.
Public employers advance several arguments to establish that this dispute is now moot. First, they contend that intervenors do not expressly request the reinstatement of the 1998 and 2000 orders. On the contrary, intervenors assert that the trial court erred in determining that PERB had violated Oregon law and had abused its discretion in issuing the challenged orders. The logical consequence of those arguments, if accepted, is a rejection of the public employers’ challenges to the orders and a reversal of the trial court’s judgment that required PERB to vacate the orders in response to those challenges.
Public employers also contend that intervenors have no interest in the challenged orders because they are not parties to those orders and because the trial court’s judgment did not require PERB to reduce or affect PERS member benefits. It is true that intervenors were not parties to the orders. However, intervenors contend that they are affected by the trial court’s decision remanding the orders to PERB. I agree. The trial court’s judgment requires PERB on remand to reallocate significant retirement fund earnings, for example, to fund contingency and gain-loss reserve accounts. But for that reallocation, the earnings that PERB’s order addressed would be claimed by PERS members as part of the earnings on their contributions. Because intervenors have a legally *132cognizable stake in the consequences of the trial court’s judgment, they have a cognizable claim that the trial court erred in reversing and remanding PERB’s orders.
Public employers further argue that
“the challenged orders never became final orders. Instead, they were timely challenged under ORS 183.484, and ultimately vacated by the circuit court before ever taking effect.”
That contention reflects a misunderstanding of the concepts of administrative finality, judicial review, and appellate review.
Without question, PERB’s first orders were final orders. They constituted final agency action expressed in writing. Indeed, only a final order is subject to judicial review under ORS 183.484. The fact that a party petitions the court for judicial review of an agency’s final order under ORS 183.484 does not deprive the order of finality in any sense. Instead, the Administrative Procedures Act, ORS 183.310 to 183.750, states the procedures and standards that determine whether, on judicial review, the agency or the court has authority to take some action with respect to a final order.
Three of those statutes are pertinent to this discussion. First, ORS 183.484(4) provides, in part:
“At any time subsequent to the filing of the petition for review and prior to the date set for hearing, the agency may withdraw its order for purposes of reconsideration. If an agency withdraws an order for purposes of reconsideration, it shall, within such time as the court may allow, affirm, modify or reverse its order.”
That statute authorizes an agency to withdraw its final order for purposes of reconsideration, but only if it does so prior to the date set for hearing by the circuit court. Second, ORS 183.484(5)5 sets out the standards for judicial review of a *133final order and authorizes or requires specific forms of relief to remedy specific types of errors identified in a final order. Third, ORS 183.500 provides:
“Any party to the proceedings before the circuit court may appeal from the judgment of that court to the Court of Appeals. Such appeal shall be taken in the manner provided by law for appeals from the circuit court in suits in equity.”
In contending that the challenged orders never became final, public employers attempt to establish PERB’s authority to withdraw and nullify its final orders under its settlement agreement with the public employers. But PERB had no authority under ORS 183.484(4) to withdraw its final orders after the circuit court hearing. Moreover, the circuit court’s judgment that vacated PERB’s orders was subject to intervenors’ right to appellate review of the circuit court judgment. ORS 183.500. Public employers have identified no source of authority that would permit PERB to vacate its final orders, either by its agreement with certain parties to do so or pursuant to the appealed judgment of the circuit court. The findings, conclusions, and remedies ordered by the circuit court in its judgment were subject to the appellate review that intervenors timely initiated. Thus, PERB and public employers were not entitled to treat the judgment as if it were legally operative.
The majority addresses intervenors’ lack-of-authority claim only in a one-sentence footnote, which states:
“By virtue of that settlement, intervenors’ quarrel with the trial court’s ruling has become abstract — no opinion by *134an appellate court respecting that topic could affect the viability of PERB’s new orders.”
339 Or at 123 n 9. That statement evades rather than answers intervenors’ argument.
Intervenors’ challenge to the trial court’s decision here concerns the orders that PERB issued in 1998 and 2000. As noted, the record establishes that those orders are final and that intervenors have timely pursued their statutory right to seek appellate review of the trial court’s judgment regarding those orders. The mootness controversy presented here turns solely on the viability of those orders and whether PERB has legal authority to nullify them, not whether the appellate court ruling could address “the viability of PERB’s new order[,]” as the majoritys footnote asserts. Id. (emphasis added). The majoritys approach conveniently airbrushes away intervenors’ challenge to PERB’s authority to cancel its first orders without responding to that challenge on the merits. It is telling that the majoritys one-sentence response cites no statute or case from this or any other court to support its refusal to decide whether PERB’s post-settlement cancellation of its final orders was unauthorized and, thus, without legal effect. If intervenors are correct in their assertion that PERB lacked authority to vacate its final orders, then this dispute clearly is not moot.
Finally, the majority posits that it is unnecessary to resolve intervenors’ claims on review because intervening legislative amendments to PERS and this court’s opinion in Strunk, 338 Or 145, have resolved “all but one” of the issues that intervenors raise. 339 Or at 125. It is true, as the majority acknowledges, that the 2003 PERS reform legislation and this court’s decision in Strunk address and resolve less than all the legal questions that intervenors raise here. Consistently with that view, the settlement agreement that public employers and PERB entered into recited that “[t]he reform legislation addresses some of the issues addressed in the City of Eugene case.” (Emphasis added.)
I assume arguendo that the majority is correct in contending that the PERS reform legislation effectively has resolved some of the claims that intervenors raise, including *135the dispute over updated actuarial factors, the need for further discovery of documents, and the gain-loss reserve account.6 However, and even under the majority’s theory, neither the 2003 PERS reform legislation nor Strunk resolves the dispute presented here respecting the trial court’s conclusion that PERB had erred in requiring public employers to match the earnings allocated to members’ variable annuity accounts. Intervenors continue to assert that PERB correctly interpreted the pertinent statutes on that subject and that the trial court’s contrary interpretation of those statutes was erroneous.
The majority regards that dispute as moot because PERB and public employers incorporated into their settlement agreement a different formula for matching earnings on variable accounts and, after vacating the orders in dispute here, PERB issued new contribution rate orders. But that response on the majority’s part simply fails to answer intervenors’ challenge to PERB’s authority to nullify the orders that are the basis for this appeal. If the final orders continue to have legal efficacy because, as intervenors argue, PERB had no authority to vacate them, then intervenors’ challenge to the trial court’s interpretation of the requirements for matching earnings on variable accounts presents a live controversy that this court should resolve. Consequently, I do not agree that this court should dismiss this proceeding at this time.
For the foregoing reasons, I respectfully dissent.
Riggs, J., joins in this dissenting opinion.As an analytical tool, the notion of a “burden” to establish mootness, as employed in Brumnett, may be less than helpful. The court must address and resolve the dispute before it only if the dispute is not moot. The court may examine all facts that pertain to that issue whether brought to the court’s attention by any of the parties or some other source. If the facts demonstrate mootness, it matters little whether the moving party’s evidentiary showing, viewed in isolation, is sufficient to support that conclusion.
Intervenors also contended that PERB had erred in construing and applying Oregon law in connection with the issuance of the March 2000 order that credited 1999 earnings.
The majority summarizes the employers’ challenges and the trial court’s conclusions, as follows:
“As relevant here, employers argued that PERB: (1) unlawfully had failed to fund a contingency reserve account, which caused employer contribution rates to increase; (2) unlawfully had required employers to match the earnings in members’ variable annuity accounts; (3) unlawfully had failed to adopt and implement updated actuarial factors when calculating member retirement benefits; and (4) had abused its discretion by crediting Tier One members’ regular accounts in excess of the assumed earnings rate while failing to fund adequately the contingency reserve account, the Benefits-in-Foree reserve account, and the gain-loss reserve account.
“With respect to those claims, the trial court concluded that (1) PERB unlawfully had failed to maintain a contingency reserve account; (2) PERB unlawfully had required employers to match the earnings in members’ variable annuity accounts; (3) PERB unlawfully had failed to adopt and implement updated actuarial factors when calculating member retirement benefits; and (4) PERB had abused its discretion by crediting Tier One members’ regular accounts with 20 percent earnings for 1999.”
339 Or at 118-19 (footnotes omitted).
One public employer, Eugene Water and Electric Board (EWEB), also appealed, but that appeal has no bearing on the mootness issue in this case.
ORS 183.484(5) provides:
"(a) The court may affirm, reverse or remand the order. If the court finds that the agency has erroneously interpreted a provision of law and that a correct interpretation compels a particular action, it shall:
“(A) Set aside or modify the order; or
“(B) Remand the case to the agency for further action under a correct interpretation of the provision of law.
*133“(b) The court shall remand the order to the agency if it finds the agency’s exercise of discretion to be:
“(A) Outside the range of discretion delegated to the agency by law;
“(B) Inconsistent with an agency rule, an officially stated agency position, or a prior agency practice, if the inconsistency is not explained by the agency; or
“(C) Otherwise in violation of a constitutional or statutory provision.
“(c) The court shall set aside or remand the order if it finds that the order is not supported by substantial evidence in the record. Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding.”
The majority opines that Strunk effectively resolved the question whether PERB had a statutory duty under ORS 238.670(1) to fund a contingency reserve account. 339 Or at 126. In that respect, the parties disagreed about whether PERB violated the requirement in that statute to “set aside * * * such part of the income as [PERB] may deem advisable, not exceeding seven and one-half percent of the combined total of such income * * *” by choosing for several years to not direct any funds to the contingency reserve account. Contrary to the majority’s assertion, Strunk did not address or decide that question and the disputed wording, quoted above, remains in the statute.