recognizing that the Bureau of Prisons is an "agency" within the definition of the APA, and that its rulemaking is subject to the APA’s applicable requirements
How later courts described this case
- recognizing that the Bureau of Prisons is an "agency" within the definition of the APA, and that its rulemaking is subject to the APA’s applicable requirements
- recognizing that the Bureau of Prisons is an "agency" within the *121 definition of the APA, and that its rulemaking is subject to the APA’s applicable requirements
- “A case is not moot so long as any single claim for relief remains viable, whether that claim was the primary or secondary relief originally sought.”
- “[w]hether actually incarcerated or in parole or mandatory release status, the appellants continue subject to the rules and regulations of the Bureau of Prisons”
Written by the judges who cited it.
The opinion
MacKINNON, Circuit Judge
(concurring specially):
I agree that the District Court erred in dismissing the complaint on grounds of non justiciability and I also agree that the case is not moot. As this is sufficient to justify reversing and remanding the case for further proceedings, I concur in the result reached by the majority-
The Bureau of Prisons admits that the material appellants seek are “policy statements.” 1 Under the Administrative Procedure Act, such statements either must be published in the Federal Register if they are “statements of general policy,” 2 or else must be made available to the public for inspection and copying. 3 Thus appellants are clearly entitled to disclosure of the Bureau’s “policy statements” in some manner. However, I agree that consideration of the appropriate relief to be afforded appellants is best left to the District Court in the first instance.
I am not in agreement with the suggestion that our decision in Pickus v. U. S. Board of Parole, 165 U.S.App.D.C. 284 , 507 F.2d 1107 (1974), is completely controlling here. 4 Like the Board of Parole, the Bureau of Prisons is undoubtedly an “agency” for the purposes of complying with the APA. However, as to appellants’ contention that the “policy statements” are “rules” with respect to which the Bureau is required to give notice of proposed rulemaking under 5 U.S.C. § 553 before they may be adopted *706 or amended, it is at least arguable that parole regulations may be subject to stricter rulemaking requirements than prison policies for the daily operation of penal institutions. Some of these policies may not have the substantial effect on the rights of persons subject to agency regulations which Piekus holds is the test for applying the notice and hearing requirement. The court will need considerably more than the present meager record before the application of section 553 to these “policy statements” can be adequately assessed. At this stage of the proceedings, I would not suggest that Piekus has authoritatively disposed of the issues presented by this complaint.
. Answer, 117; J.A. at 11.
. (a) Each agency shall make available to the public information as follows:
(1) Each agency shall Separately state and currently publish in the Federal Register for the guidance of the public—
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(D) . . . statements of general policy or interpretations of general applicability formulated and adopted by the agency.
5 U.S.C. § 552 (a)(1)(D) (1970) (emphasis added).
. (2) Each agency, in accordance with published rules, shall make available for public inspection and copying—
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(B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register;
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unless the materials are promptly published and copies offered for sale. .
5 U.S.C. § 552 (a)(2)(B) (1970).
. See Majority op. 173 U.S.App.D.C. at p. -, 522 F.2d at p. 700 n. 6.