Submitted June 1, 2018
Porter Smith fled the briefs pro se.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Judy C. Lucas, Assistant Attorney General, fled
the brief for respondent.
Lagesen, Presiding Judge, and DeVore, Judge, and James,
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.
Or.App. 310] LAGESEN, P. J.
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).
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