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Smith v. Department of Corrections

Court of Appeals of Oregon

October 30, 2019

ARLEN PORTER SMITH, Petitioner,
v.
DEPARTMENT OF CORRECTIONS, Respondent.

          Submitted June 1, 2018

         Department of Corrections

          Arlen Porter Smith fled the briefs pro se.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Judy C. Lucas, Assistant Attorney General, fled the brief for respondent.

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

         Case Summary: Petitioner seeks judicial review under ORS 183.400 of a policy of the Health Services Section of the Operations Division of the Oregon Department of Corrections. Petitioner argues that the policy is actually an administrative "rule" within the meaning of ORS 183.310(9) that is invalid because it was adopted without proper rulemaking procedures. ORS 183.400(4) (c). Held: The Court of Appeals lacks jurisdiction, because petitioner did not adequately show that any part of the challenged policy constituted a rule. See Smith v. DCBS, 283 Or.App. 468, 471-72, 388 P.3d 1253, rev den, 361 Or. 350 (2017) ("When the matter in question is not a rule, we have no authority to review it under ORS 183.400."). Accordingly, the court dismissed.

         [300 Or.App. 310] LAGESEN, P. J.

         In this case, petitioner invokes our jurisdiction under ORS 183.400, seeking judicial review of a policy of the Health Services Section of the Operations Division of the Oregon Department of Corrections (DOC). That policy- #P-B-01-addresses DOC's Infection Prevention and Control Program. Petitioner contends that the policy is, in reality, an administrative "rule" within the meaning of ORS 183.310(9) that is invalid because it "[w]as adopted without compliance with applicable rulemaking procedures." ORS 183.400(4)(c). We conclude that petitioner has not adequately demonstrated in his opening brief that the challenged policy amounts to a rule and, for that reason, dismiss the petition for lack of jurisdiction. See Smith v. DCBS, 283 Or.App. 468, 471-72, 388 P.3d 1253, rev den, 361 Or. 350 (2017).

         ORS 183.400 grants us jurisdiction "to review the validity of [any] rule" to determine whether it "[v]iolates constitutional provisions"; "exceeds the statutory authority of the agency"; or "[w]as adopted without compliance with applicable rulemaking procedures." ORS 183.400(1), (4). A "rule" for purposes of ORS 183.400 is defined to be

"any agency directive, standard, regulation or statement of general applicability that implements, interprets or prescribes law or policy, or describes the procedure or practice requirements of any agency."

ORS 183.310(9). "[T]he amendment or repeal of a prior rule" is itself a rule within the meaning of the statute, but many other agency writings are not. ORS 183.310(9). Specifically, the following are not rules:

"(a) Unless a hearing is required by statute, internal management directives, regulations or statements which do not substantially affect the interests of the public:
"(A) Between agencies, or their officers or their employees; ...

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