Smith v. Dept. of Corrections

309

Submitted June 1, 2018, petition for judicial review dismissed October 30, 2019

ARLEN PORTER SMITH,

Petitioner,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

Department of Corrections

A165044

454 P3d 12

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 P3d 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.

Petition for judicial review dismissed.

Arlen Porter Smith filed the briefs pro se.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Judy C. Lucas, Assistant Attorney

General, filed the brief for respondent.

Before Lagesen, Presiding Judge, and DeVore, Judge, and

James, Judge.

LAGESEN, P. J.

Petition for judicial review dismissed.

310 Smith v. Dept. of Corrections

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 Con-

trol Program. Petitioner contends that the policy is, in real-

ity, 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 P3d 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 pre-

scribes 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 employ-

ees; or

“(B) Within an agency, between its officers or between

employees.

“(b) Action by agencies directed to other agencies or

other units of government which do not substantially affect

the interests of the public.

Cite as 300 Or App 309 (2019) 311

“(c) Declaratory rulings issued pursuant to ORS

183.410 or 305.105.

“(d) Intra-agency memoranda.

“(e) Executive orders of the Governor.

“(f) Rules of conduct for persons committed to the phys-

ical and legal custody of the Department of Corrections, the

violation of which will not result in:

“(A) Placement in segregation or isolation status in

excess of seven days.

“(B) Institutional transfer or other transfer to secure

confinement status for disciplinary reasons.

“(C) Disciplinary procedures adopted pursuant to ORS

421.180.”

ORS 183.310(9). If a particular agency writing is not a rule

within the meaning of ORS 183.310(9), then we do not have

jurisdiction under ORS 183.400 to determine its validity:

“When the matter in question is not a rule, we have no

authority to review it under ORS 183.400.” Smith v. DCBS,

283 Or App at 471-72.

“In order to invoke the jurisdiction of any court[,] a

party must allege such facts as are necessary to establish

that the court has jurisdiction to act.” State ex rel Sweere

v. Crookham, 289 Or 3, 7, 609 P2d 361 (1980). That means

necessarily that a petitioner seeking judicial review of an

agency writing under ORS 183.400 must, at a minimum,

put forth a nonconclusory explanation or argument as to

why the writing in question qualifies as a rule as defined

in ORS 183.310(9). As we recognized in Smith v. TRCI, 259

Or App 11, 20, 312 P3d 568 (2013), where a petitioner chal-

lenges an agency writing that has not been promulgated

through rulemaking procedures, and that writing contains

multiple provisions addressing multiple topics, “we will not

search [that writing] to identify which, if any, of [the provi-

sions] are reviewable rules.”

In this case, petitioner requests that we review

DOC’s Infection Prevention and Control Program policy as

a whole to determine its validity. Much as was the case in

Smith v. TRCI, that policy contains a number of different

312 Smith v. Dept. of Corrections

provisions and addresses a number of different topics.

Although petitioner has included a long excerpt from the

policy in his brief, that excerpt itself contains multiple

provisions addressing multiple topics. None of those pro-

visions, on their face, fall clearly within the definition of

a rule and, in his opening brief, petitioner offers nothing

other than a highly generalized and conclusory argument

on the point: “The legal flaw in respondent’s policy is that it

crosses over into rulemaking in a multitude of ways.” Absent

more focused argument as to what particular parts of the

policy petitioner contends constitute rules, and why those

parts qualify as rules under ORS 183.310(9), petitioner, as

the party invoking our jurisdiction under ORS 183.400, has

not made an adequate showing that we have it. Accordingly,

we dismiss the petition. See Smith v. DCBS, 283 Or App at

471-72.

Petition for judicial review dismissed.